Volume 18 — Indiana Reports

<p>Consent may give a Court jurisdiction of the parties to an action, but not of the subject matter of it.</p> <p>It is too late to object to the jurisdiction over the person, after the objector has appeared to the action, and gone to trial upon the merits. The objection is thereby waived.</p> <p>A degree of relationship between a justice of the peace and a suitor in his Court, which is more remote than that of second cousin, or that of the sixth degree of affinity or consanguinity, within the civil law rules, shall not deprive him of jurisdiction of the person.</p>

<p>Where, after trial and verdict, a new trial is granted on payment of cost within a specified time, by the party seeking it, and he fails to pay tbe cost within that time, it is not error to render judgment upon the verdict without further trial.</p> <p>The obligation to pay the costs within the time, is a condition precedent to his right to further trial.</p>

<p>In an application for a review of a judgment upon default, upon the ground of want of jurisdiction over the person, if the record of the former trial shows prima facie that a summons was issued and served in due time on the party applying for the review, and no facts are specially alleged controverting the same, the complaint will be bad on demurrer, notwithstanding a general allegation of such want of jurisdiction.</p> <p>Applications to review judgments, under the 28th article of the code, can not be sustained upon the ground of newly discovered evidence, that being a ground for a new trial only, but may be sustained on the ground of “material new matter,” discovered since the rendition of the former judgment, which new matter must consist of some fact or facts affecting the claim or defence, rather than mere evidence of facts.</p>

<p>If the owner of real estate, not worth over one thousand dollars, dies intestate, and without issue, or their descendants, hut leaving a widow, under the seventh and twenty-fifth sections of the law regulating descents, such widow shall he entitled to the whole, as against the surviving father of the intestate, although the real estate came to the intestate hy conveyance from his father in consideration of love and affection.</p>

<p>cure the faithful performance of his duties, although not expressly authorized so to do by its charter. An incorporation for the erection and maintainanee of a toll bridge, may employ a toll-gatherer, and take from him a mortgage to se-</p> <p>In an action to foreclose a mortgage, to which a subsequent purchaser of the fee is a party, the complaint should show that the mortgage had been recorded when such owner purchased, or that he- then had notice of the existence of the lien, but the filing of the mortgage with the complaint and making it a part of it does not operate to make the endorsed certificate of the recorder that the mortgage had been duly recorded, a part of the complaint.</p>

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

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

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

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

<p>In an advertisement of the sale of lands mortgaged to the trust funds, it -will be sufficient if it was in fact published sixty days prior to the day of sale, as required by law; and such abbreviations as “w. hf. of the n. w. qr. of see. 35, in t. 23, n. of r. 4, w.,” &c., will not vitiate it, but are sufficient description, and the particular fund need not be named in it, nor the exact amount due on the mortgage.</p> <p>In the performance of his duties in reference to such sales, the Auditor of State may act by deputy; and if his deputy was regularly appointed, and acted in that capacity, but had taken his oath of office before a person not authorized to administer oaths, he will be deemed an officer de facto, and his acts as snch deputy held sufficient in any controversy concerning them where he is not a party, and is therefore not personally called upon to justify the acts done in his official capacity.</p> <p>In such sales, the auditor is not required to offer the mortgaged property for sale in parcels, hut may do so if necessary, to enable him to realize the amount of the debt and costs.</p> <p>In the construction of statutes, the word may will be construed to be synonymous with the word shall, where public interests and rights are concerned, and where the public or third persons have a claim de jure, that the power should be exercised.</p>

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

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

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

<p>Connard v. Christie, 16 Ind. 427, and Jones v. Bronberger, 15 Ind. 443, overruled.</p> <p>In an action on a note by the assignee against the maker, it is not necessary to make the assignment of the note a part of the complaint, because the assignment constitutes no part of the cause of action.</p> <p>The manner of transfer does not go to the cause of action, but merely to determine whether the assignor is a necessary party defendant, and should therefore be averred.</p> <p>Where the endorsement constitutes the contract sued upon, it must be set out by original or copy, as in an action by an endorsee against an endorser.</p>

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

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

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

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

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

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

<p>"Where, at the time of the organization of a corporation, there was a law in force authorizing the saíne, and after such organization, a person contracts with the corporation, and is sued upon such contract, he is estopped to deny the existence of the corporation.</p> <p>It is not a good bar to an action upon a subscription to the stock' of a railroad company, to aver that, at the time the subscription was made, the soliciting agent of the company agreed in writing, separate from the contract of subscription, that if the citizens of a named place and vicinity would subscribe a given sum to such Stock, the proposed road should be located within a given distance ' of such place, and that such subscription should be expended on a certain part of said road, and that the subscription was made in consideration of such agreement, and that said agreement was not performed by the company.</p> <p>Where a subscription is made in a small blank book, and is after-wards accepted by the railroad company, it is not necessary that the same should be transferred to the stock books of the company; and its acceptance would seem to make the book in which it was made the stock book of the company to that extent, and would make the contract of subscription complete, and no notice of acceptance need be given before suit.</p> <p>The allegation that the stock solicitor fraudulently represented that a sufficient amount of solvent stock was subscribed to complete the road within two years, and that the company was able, and could and would press said road to completion within that time, and failed to do so, constitutes no bar to recovery on such subscription.</p>

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

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

<p>A person who lias a judgment against another for consequential damages to his lands, resulting from the erection of a public work, not touching his said lands, which was carefully and skillfully erected, in accordance with authority duly conferred by the State, can not have such work declared a nuisance, subject to abatement.</p>

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

<p>Where a judgment is taken by default, a motion to set aside the default must precede an appeal to this Court. v</p>

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

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

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

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

<p>Contracting with a corporation, as such, which is authorized by a general law, admits its existence, and a general denial admits the •capacity of the corporation to sue.</p> <p>It would seem, that municipal corporation bonds, payable to bearer, are commercial paper, and goyerned by the law merchant.</p> <p>Section 6, of the act of December 31, 1849, local acts 1849, and ’50, p. 39, legalized the stock subscribed by counties before its passage, and empowered the commissioners to issue bonds for its payment.</p> <p>The same act restricted the railroad company therein named from selling its own bonds at a greater discount than ten per cent., but did not so restrict it in the sale of the bonds of others.</p>

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

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

<p>Section 790, 2 R. S., p. 213, when applied to the construction of bonds given to stay execution, or on appeal, shall be construed to mean:</p> <p>1. Any instrument, in writing, however defective, which the parties execute for the purpose of staying execution, or on appeal, and the officer accepts for such purpose, will have the force and effect of an appeal bond against all the parties executing it, and will stay execution till the Court shall quash the bond.</p> <p>2. If the instrument specifies no amount, or contains no penalty, the law will hold the obligors in it liable to the extent required by the . statute upon an appeal and supersedeas, in such case, on the ground of intention in the parties executing the instrument to become liable to that extent.</p> <p>3. But sureties may expressly limit the amount of their liability by the terms of the.obligation; and if they do, and the officer is still satisfied with it, and accepts it, they will not be bound beyond the amount named, but, it proving insufficient, the officer might be liable for the deficiency.</p>

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

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

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

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

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

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

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

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

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

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

<p>Where a verbal contract for the sale of land has been executed on one side, by a conveyance of the property, the proper action is upon an implied promise arising from the plaintiff’s performance, implied ' promises not being embraced by the statute of frauds, but, in such ease, no action can be maintained on the special contract itself.</p> <p>A party who would rescind a contract on the ground of fraud, must offer to do so in a reasonable length of time after the fraud is discovered, and on such rescisión the parties mjist he placed in the identical situation in which they were when they entered into the contract.</p>

<p>The obligation of each of several subscribers to the stock of a railroad company, where they all sign the same subscription agreement, must be construed to be several and not joint.</p> <p>An answer in general denial, not verified, to a complaint, by the railroad company, upon such subscription, admits the capacity of the plaintiff to prosecute the suit, and the execution of the written subscription of stock.</p> <p>Subsequent paragraphs of the same answer, denying the existence of the corporation, may, therefore, be rejected on motion.</p> <p>Demurrers to answers in abatement do not reach back to the complaint, for such answers are not addressed to the complaint.</p> <p>As to what constitutes a sufficient order for the payment of calls on a subscription, see the last two pages of the opinion.</p> <p>Ah attorney is never allowed to change sides in the same suit, or receive fees of two adversaries in one cause; but where an attorney has, in the course of other business, obtained a Knowledge of matters connected with the suit in question, Courts will not, in general, on that account, restrain an attorney from acting against the party through whose business he 'obtained such knowledge.</p> <p>Generally, the judgment in a cause can not legally exceed the amount claimed.</p>

<p>Section 172, p, 383, 2 B.. S. 1852, continues in force the act of 1843, p. 1002, K. S, 1843, requiring the county in which a criminal proseoution is begun, to bear the expense of the prosecution upon a change of the venue thereof to another county, and payment thereof may be enforced by proper mandate.</p>

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

<p>There are but two modes in which title to real estate can be put in issue in suits before justices: 1. By pleading, duly supported by affidavit; and 2. By proof adduced upon the. trial.</p> <p>But where it is not put in issue by pleading, as aforesaid, and the justice tries and renders judgment in the cause, and the defendant appeals to the Circuit Court, in the absence of the evidence adduced before the justice, the appellate Court must presume that the justice did his duty, and that the title was not put in issue before him in any way.</p> <p>If, upon a trial in the appellate Court, the title be put in issue, either by pleading, as aforesaid, or by the evidence, that fact could not deprive such Court of its jurisdiction, or relate back so as to defeat the jurisdiction of the justice.</p> <p>Where an appeal is taken from a judgment of dismissal of a cause, a motion for a new trial below is unnecessary to render the* error available in the Supreme Court.</p>

<p>When an application for a change of venue in a criminal ease, is made in the Court of Common Pleas, on account of the prejudice of the judge against the applicant, the law makes it the imperative duty of the judge to grant such change to the Circuit Court, and gives him no discretion to refuse it.</p>

<p>Promissory notes, as to their validity, nature, interpretation, and effect, must be governed by the laws of the State where they are made.</p> <p>A complaint, which shows that a note and its indorsements were made in another State, should also set forth the laws of that State, governing the transfer of such note, because this Court will not presume that the laws of another State are similar to those of Indiana, . but will presume that the common law prevails in such other State.</p>

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

<p>The giving of notice of an award, on Sunday, is valid, it not being an act of common labor, nor a judicial act, nor one specially prohibited by any statute, and being a mere ministerial act connected with a judicial proceeding.</p>

<p>See the next preceding case.</p>

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

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

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

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

<p>No bill of exceptions.</p> <p>When a Court appoints 311 attorney to perform services, the Court should make an allowance, which the auditor of the county should draw his warrant for, and the treasurer should pay.</p>

<p>The vendor of land has a lien for the purchase-money on the land against the vendee and purchasers from him with notice.</p> <p>A sells land to B, and takes B’s notes for the purchase-money, but no mortgage. B sells the same land to G, who has notice of the unpaid notes, and agrees to pay them, and executes a mortgage on the land to B to secure their payment. B seeks to foreclose the mortgage, G having failed to pay the notes to A.</p> <p>Held, that A is a necessary party to such suit, in order that the judgment in the suit may direct the payment of the money in such a manner, among parties before the Court, that the judgment may bind all parties, and inay be enforced against all having interests, now ready for enforcement, in the land, and in its titles, and the proceeds of its sale.</p>

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

<p>A notice of intention to hold a lien for materials furnished, is suffi cient if it state the amount, to whom, from whom, and for what due, and describe the premises upon which the lien is contemplated.</p> <p>"Where materials were furnished to, and a lien claimed against, an unmarried man, who afterwards died without issue, his heirs are proper parties defendants to an action to enforce the lien.</p>

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

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

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

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

<p>An appeal from an order setting aside a jugdment for the purpose of giving a rehearing is premature, and must he dismissed.</p>

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

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

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

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

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

<p>If it is alleged that a term of Court was unauthorized, it is not avail able here as an error unless it had been properly urged below.</p>

<p>As a general rule, a party can not recover on a special contract which he has failed to fulfill on his part.</p> <p>But where the plaintiff’s agreement or stipulation constitutes only a part of the consideration of the defendant’s contract, and the defendant has actually received a partial benefit, and the breach on the part of the plaintiff may be compensated in damages, an action may be supported on the contract, without showing strict performance by the plaintiff.</p>

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

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

<p>It would seem that a fair and reasonable construction of section 51, p. 491, 1 R. S., would not exact from persons, seeking to have territory annexed, the necessity of naming, in the notice of such intended application, each person owning parts of said territory, if the same were otherwise therein so described and identified as to give such -persons notice that their interests were to be involved.</p> <p>Where an appeal is taken by several defendants, some of whom assign errors in this Court, and others of whom do not, the appeal will be dismissed as to the latter for the want of such assignment, which is equivalent to a declination to join in prosecuting the appeal further.</p>

<p>Section 26, p. 328, 2 R. S., applies as well to additional bonds, given on applications to sell real estate, as to original bonds given to , secure tbe discharge of general duties of guardians and others.</p> <p>It is perhaps the right of a surety, without showing any reason, to ask the Court to discharge him from such bond, and the duty of the Court, upon such application, to require the execution of another bond, and grant other proper relief.</p>

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

<p>If a contract is void as to one of the parties to it by reason of his insanity, or incapacity to make a contract on account of mental imbecility, it is also void as to- all other parties to it.</p>

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

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

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

<p>Causes appealed from justices of tbe peace'should not be tried upon errors in the transcript, but on the merits, upon the original papers.</p> <p>Clerical errors or omissions in a justice’s transcript should be allowed to be corrected by the justice, especially where there are sufficient papers on file for him to correct or amend by.</p>

<p>The Oourt of Common Pleas has jurisdiction over 1,000 dollars.</p>

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

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

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

<p>APPEAL from the Bipley Oommon Pleas.</p>

<p>Tlie entry of á claim by tbe clerk on tbe appearance docket, is all tbe notice required by law, to be given of its pendency against an estate.</p> <p>A ground for tbe review and setting aside of a judgment wbicb is not brought to tbe attention of tbe Court below, will not be considered in tbis Court.</p>

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

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

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

<p>A complaint against a plank road company in the nature of a quo wcvrranto, should affirmatively show the .date of ,the charter under, and organization by, which the company acts, in order that the Court may be informed whether the company is subject to the provisions of' the laws of 1852 and 1859.</p> <p>Such organizations, effected under the law of 1852, would be subject to the general control of the Legislature.</p>

<p>One party to the record can not take advantage in this Court of error committed below against other parties, unless he has been injured thereby.</p> <p>Excessive damages can not be made available in this Court, unless they were, made a ground of a motion for a new trial below.</p>

<p>The rate of interest allowed by law in the place where a note is made payable, may be recovered in an action here, if the law of the place of payment is properly averred and proven.</p>

<p>In pleading that a particular place is a public highway, it is only necessary to aver generally, that it was a public highway, without a statement of the facts which render it such.</p> <p>Courts should not readily interfere with highways, which have been dedicated to, and used by, the public for over twenty years, merely on account of irregularities in. the manner of their original dedication.</p> <p>It is immaterial as to the jurisdiction of township trustees over the highways in their townships, whether the highways also extend into or through other townships or counties.</p>

<p>An instrument, acknowledging the non-payment of purchase money, and giving the vendor the right of possession until it is paid, when properly recorded, is sufficient notice to subsequent purchasers of the vendors lien.</p> <p>And such an instrument is a conveyance of an interest in real estate, within the provisions of sec. 34, 1. R. S. p. 238.</p> <p>A recital in a deed that the purchase money is unpaid is constructive notice to all the world of the fact.</p>

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

<p>In bastardy prosecutions, if the party proposing to introduce in evidence the statement of the mother’s testimony taken before the justice, refuses to state the purpose for which he offers it, the Court may forbid its introduction.</p> <p>The Court, in its discretion, for cause shown, after the.trial of a cause ■ has been begun, may postpone the further trial of the cause until the next day, upon reasonable terms. f</p> <p>The jury is the exclusive judge of the evidence.</p>

<p>It is competent for the Legislature, by curative laws, where not restrained by constitutional provisions, to make a void thing valid.</p> <p>It may, by sueb law, validate tbe proceedings of a term of Court bolden without authority of law.</p>

<p>No proper steps below to secure the consideration of alleged errors by this Court.</p>

<p>A stranger to a deed or contract can take no advantage of a breach, of its conditions.</p>

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

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

<p>Errors if any not properly before this Court.</p>

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

<p>An infant may at any time disaffirm his power of attorney, and the same will cease to have any validity.</p> <p>A warrant of attorney, executed by an infant, is probably void.</p> <p>The admission of the proseerutrix in a bastardy suit, that provision for the maintenance of the child' has been made to her satisfaction, to be effective, must be made in open Court, though such admission may have been made and reduced to writing out of Court.</p> <p>An- agreement of an infant proseerutrix in such suit, to take a given sum as a sufficient provision for the maintenance of the child, would not bar her action.</p>

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

<p>This Court will not disturb a verdict which the evidence tends to sustain.</p>

<p>An answer, setting np matter of defence which is admissible in evidence under the general-denial, maybe stricken out, where the general denial has been pleaded.</p> <p>The endorsee of a note is under no obligations to see that the payee performs any contract which may have been the consideration for which the note was given, because if he were defeated in his action against the maker he could proceed against his endorser.</p>

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

<p>As a general rule, a sheriff may te allowed to amend tis return on an execution, where it defectively describes the land levied on, but the Court, though it may allow him so to amend, has no power to compel him to do so, or to make the order directing such amendment to be made.</p>

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

<p>In an application to he relieved against a judgment, the judgment plaintiff is entitled to notice of the application.</p> <p>An appeal to this Court from a mere interlocutory order is premature and should only he taken from a final judgment.</p>

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

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

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

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

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

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

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

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

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

<p>A general answer of fraud is bad. Fraud must be specifically pleaded.</p> <p>A general answer of no consideration is good.</p> <p>But a general answer of failure of consideration is bad, and such, failure must be specifically pleaded.</p>

<p>An answer, averring that the cause of action sued on does not belong to the plaintiff, and is being prosecuted by bim for tbe use of another, and that the plaintiff paid no consideration for the same, and sues in order to enable the real owner to testify, and to give the Court jurisdiction, is a good answer.</p>

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

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

<p>The notice of intention to hold a mechanic’s lien should so describe the claim as to inform the public whether it is due or not due, and all ambiguities shall operate to the prejudice of the author of them rather than of the public.</p> <p>No material alteration can be allowed in the notice, on filing a complaint upon it.</p>

<p>It is competent for a Court, in the exercise of a sound discretion, to suffer a pleading to be filed, after the trial has been entered upon.</p> <p>If money be deposited with a married woman, her husband will not be liable therefor, unless the deposit was made at his request, or the wife received it as his agent.</p> <p>A loan to the wife will not bind the husband unless it was made with his authority or consent.</p>

<p>A judgment will not be reversed where there was a trial without an issue, unless the proper steps are taken below to make the error available in this Court.</p>

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

<p>A purchaser of goods from a fraudulent vendor, may have the legal and beneficial ownership in him, and may transfer it to -a bona fide purchaser from him, at any time before creditors of the fraudulent vendor divest him of the property.</p> <p>An agent, who contracts with another, in Ms own name, may sue on the contract; but he can not, when he contracts in the name of, his principal.</p> <p>A tender of a specific article, to be effective, must be of such an article, in every material respect, as the contract under which it is mad| requires.</p>

<p>Where a Court orders an adjournment to a special term, for the completion of unfinished business, and that due notice thereof be given by publication, and such notice is given, but there is an omission of the clerk to enter up the proper adjourning order, the Court, when convened in such special session, may direct such order to be entered nunc pro tunc, and thereby render the proceedings of said term regular.</p>

<p>Erroneous rulings, upon exceptions to interrogatories, in order to be available in this Court, must have been made the basis of a motion for a new trial below.</p>

<p>Actions for malicious prosecutions' generally rest upon the facts of a prosecution ended, malice in the person prosecuting, and want of probable cause for the prosecution.</p> <p>The malice of the prosecutor, and the disgrace, vexation, expense and damages of the prosecuted, are not measured by the sufficiency or insufficiency of the charge on which the prosecution is instituted.</p> <p>The action for malicious prosecution may be founded upon an indictment on which no acquittal can be had, by reason of its rejection by the grand jury, or its being coram non judice, or its defective form.</p>

<p>Actions of replevin may be instituted before any justice of the peace in the county, without reference to the fact that the defendant may reside in a different township from that in which the justice resides.</p>

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

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

<p>The last clause of section 99 of the code, authorizes relief in cases in which the ground of relief is limited to, or connected with, the act of taking or rendering judgment, and not on account of errors occurring during the progress of the cause when both parties are present in Court.</p> <p>Section 356 of the code, authorizes relief for causes of new trial discovered after the term; but these causes must be such as would have justified a new trial during the term, had they been known, and they must have existed at the time of the trial.</p> <p>Section 586 of the code, authorizes a review of a judgment for error appearing on the face of the record, or for “ material new matter,” discovered after its rendition, which new matter means the fact or facts constituting the ground of action or defence, and not mere evidence of those facts.</p> <p>In an action brought by an equitable assignee, the assignor should be made a party.</p> <p>Experts may be called to testify their opinions as to whether a date in a note had been altered, by the substitution of one figure for another.</p>

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

<p>In an action to foreclose a mortgage given to secure purchase money, where the land is incumbered with prior judgment liens to an amount exceeding the balance due on the mortgage, the mortgagor may have an injunction against the collection of the mortgage-debt, until the mortgagee shall reduce the incumbrance to a sum not exceeding the unpaid purchase-money.</p>

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

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

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

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

<p>The proceedings upon a guardian’s petition for the sale of real estate of his ward are ex parte in their character, and hence a suit will not lie by the ward to review a judgment rendered therein.</p>

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

<p>On the trial of the appellant on an indictment for murder in the second degree, the Court erroneously instructed the jury, that, on eonyietion of manslaughter, the heaviest punishment they could inflict was confinement for fourteen years in the penitentiary;, and the appellant was then convicted of murder in the second degree, and sentenced to the penitentiary for life.</p> <p>£{eld, That such instruction might have prejudiced the defendant, and entitled him to á reversal of the judgment.</p>

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

<p>The written application for insurance, which usually precedes the execution of a policy, does not constitute a part of the contract of insurance, in such sense as to require it to be filed as part of the foundation of the suit.</p> <p>The mere indication, in the policy, of the place where the application could be found on file, does not make it a part of the policy.</p> <p>A paper, not attached to the policy, may, by express stipulation in the policy, be made a part of it, and amount to a warranty.</p> <p>By the law of insurance, to make a stipulation an express warranty, so that on the literal fulfillment thereof the entire contract shall depend, it should be inserted in writing on the face of the policy, or in a detached paper stipulated to be a part of the policy.</p> <p>A mere representation, as distinguished from a warranty, in the law of insurance, is a verbal or written statement made by the assured to the underwriter, before the subscription of the policy, as to the existence of some fact or state of facts, tending to induce the underwriter more readily to assume the risk, by diminishing the estimate he would otherwise form of it.</p> <p>A want of truthfulness in the representations is fatal or not to the insurance, as it happens to be material or immaterial to the risk undertaken.</p> <p>It is competent to prove, by the testimony of a witness, that he forwarded a notice of the loss by fire to the company, and to read to the jury a copy of that notice, retained at the time, without having first notified the company to produce the notice.</p> <p>Section 22, 1 R. S. p. 33Q, has reference alone to domestic corporations, or companies.</p>

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

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

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

<p>To render error, in the dismissal of a cause below, available in this Court, there should be a bill of exceptions showing the cause of the dismissal.</p>

<p>An affidavit, which is the basis of a motion to set aside a default-judgment, which motion is overruled, is not properly in the record on appeal to this Court unless it be embodied in a proper bill of exceptions.</p>

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

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

<p>In an action upon a forfeited recognizance, it is sufficient to set out tbe recognizance in haec verba.</p> <p>It is not necessary that a recognizance taken in open Court and entered upon its record, should be signed by the parties. It is witnessed by the record and not by the signatures.</p> <p>A defendant in a prosecution for crime or misdemeanor, may be called and his recognizance forfeited, while the motion for a new trial is pending.</p> <p>Where a defendant is recognized to appear and answer to an indictment, under which he has been convicted of a lesser offence than that charged, he is still bound to appear, abide the order of the Court and not depart without leave.</p>

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

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

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

<p>An answer, purporting to apply to a whole complaint, but which in fact constitutes an answer to but a part of it, is bad.</p>

<p>Where the proprietor of a building, in which a burglary is committed, aad his servant, are previously advised that the crime will be committed, and make no efforts to prevent its commission, but provide a force for, and secure the arrest of the burglars, the liability of' the burglars to punishment is not thereby changed.</p>

<p>In an information for selling liquor without license, it is sufficient to describe the liquor as intoxicating.</p>

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

<p>The sale of offices is against public policy, and will not be sustained by the courts.</p> <p>An agreement, for a fixed sum, to permit or authorize another to perform the functions, and receive in return the whole of the emoluments of an office, will not be enforced in favor of either party.</p> <p>Where the compensation of an office arises from fees, and is uncertain in amount, if the principal, in constituting his deputy, reserves a sum certain out of the fees, the contract is valid.</p> <p>But where the agreement is, not to pay out of the profits, but to pay generally, a certain sum at all events, the appointment of a deputy under such contract is void, and a bond conditioned for the payment of such sum is void.</p>

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

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

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

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

<p>A complaint based on notes secured by mortgage is bad on demurrer unless it contain tbe original or copies of tbe notes and mortgage.</p> <p>In general, tbe proceedings of a Court of competent jurisdiction can not be collaterally impeached.</p>

<p>A paper, purporting to be a record of a judgment, which fails to show by what -Court it was 'rendered, or when, or for what cause of action, is a nullity.</p>

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

<p>An application to set aside a default may be made at the term at which the default was taken, on affidavit and notice to the opposite party, without a complaint and service by summons.</p> <p>Such applications are in the nature of applications for new trials; and if they show a prima facie defence to ' a part of the cause of action, they are sufficient in showing merits; and the Court, in the exercise of its discretion to grant or refuse the relief asked, should consider all the circumstances of the case, and the peculiar practice of the law in Indiana.</p>

<p>Quaere, whether an information for desecration of the Sabbath is good, which charges the unlawful selling of “two cigars,” and does not charge that it was done in the usual avocation of the defendant.</p>

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

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

<p>A.n information for a felony in the Court of Common Ploas must aver the facts which give that Court jurisdiction.</p>

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

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

<p>Application to set aside a default on account of surprise. See note.</p>

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

<p>Where a party asks for a new trial on the ground of newly discovered evidence, he must set forth in his bill of exceptions the testimony which was submitted below, so as to enable this Court to judge whether the result would be changed by the new testimony, or whether the testimony would be merely cumulative.</p>

<p>If the evidence below tends to sustain the verdict of the jury; this Court will not disturb it.</p> <p>Error in granting a continuance, unless it prevent a fair trial thereafter, will not justify a reversal of the judgment afterwards rendered in the ease.</p> <p>To render errors of law, occurring at the trial and excepted to at the time, available in this Court, they must be made the ground of a motion for a new trial and specially pointed out in such motion.</p>

<p>No appeal lies in behalf of the State or the relator, from the judgment of a justice of the peace, in a prosecution for surety of the peace.</p>

<p>The remedy for the trial of the right of property, given by chapter 5,2 R. S. p. 493, et seq., is merely cumulative, and does not forbid resort to the ordinary proceeding in the nature of replevin.</p> <p>The plaintiff, in an action in attachment, is a proper party defendant in an action to try the right of property levied upon under the attachment writ, where he had assumed the control of the writ, and directed the officer as to its execution.</p>

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

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

<p>The costs in a criminal case are matters of private right, and constitute a mere indebtedness, for which, in the absence of fraud, a defendant can not be ordered to be imprisoned.</p>

<p>No information in the record, and therefore no jurisdiction appears to have existed in the Court to try the cause.</p>

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

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

<p>A TP &1AL from the Bartholomew Circuit Court.</p>

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

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

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

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

<p>Errors, to be available in this Court, must have been first presented to the consideration of the Court below in some legal form.</p>

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

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

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

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

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

<p>In an action appealed upon the ground of the insufficiency of the evidence to sustain the verdict, this Court will not disturb the verdict if the evidence tends to sustain it.</p>

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

<p>McCarty v. The State, 16 Ind. 310, followed.</p>

<p>Under the 178th section of 2 E. S. p. 289, the heirs of a decedent are not liable to the payment of his debts to the extent of property received by them from him, unless the creditor shall assert his claim within the time prescribed in said section.</p>

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

<p>In a prosecution against a negro or mulatto for coming into and settling in the State, it should be averred in the information and proven that the unlawful coming into, &e., took place within a period not barred by the statute of limitations.</p> <p>The statute of limitations ma.y be taken advantage of under the plea of not guilty, in criminal cases.</p> <p>The statute prohibiting the ingress of negroes and mulattoes into the State is constitutional, and its title sufficient to embrace the pro- ' visions of the act.</p>

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

<p>In an action upon mortgage and notes, they should both be set out in, and made parts of, the complaint, either by filing the originals, or by copies, and merely filing them with the complaint, without any reference to them in it, is not sufficient.</p>

<p>Where two persons execute a note as principals, hut one of them is surety in fact for the other, the surety can not plead that there was no consideration for his promise, because it is unnecessary that any consideration should move to him.</p>

<p>The taking of a new note and mortgage will not operate as an extinguishment of the debt evidenced by the former note and mortgage, nor as a satisfaction of the same, if said note and mortgage were received as mere collateral security for the pre-existing debts, unless superior equities have intervened.</p> <p>Where a debt, evidenced by a note, and secured by a mortgage, is renewed by the amount of principal and interest being embraced in a new note, which is also secured by an additional mortgage, by way of further security, and a general judgment is recovered on the latter note, the legal effect is to merge both notes in said judgment, that being a higher security, and said judgment should be the foundation of any action for further relief on account of the same debt.</p> <p>In a decree for the sale of various parcels of lands, incumbered by successive mortgages, and then transferred in fee to different purchasers, the first mortgagee is entitled to the speediest mode of collecting his money, and the Court should therefore direct that they should be offered for sale, not that they should be sold, in the order required by established rules of law or equity.</p>

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

<p>A is indebted to B, and C to A, in equal sums, an'd C assumes to pay M’s debt to B, and executes Ms note to Mm therefor, and thereupon B cancels his claim against A and receipts for the same in full. Held, that these facts constitute sufficient consideration for the note from C to B, and such note or any one given in renewal thereof can be enforced.</p>

<p>Blalcer.Faulkner, on the subject of voluntary assignments, followed.</p> <p>Under the assignment law of 1859, partnership property should be assigned by the act of the partners, and individual property by the act of the individual owner.</p> <p>A reservation, in good faith, in an- assignment by the assignor, of “so much property as may be exempt from execution,” will not avoid the deed.</p>