Volume 19 — Indiana Reports

<p>Where a sheriff, having an execution in his hands, demands personal property of the execution defendant, and he surrenders two notes, and afterward requests that they he given hack to him, and surrenders no other property, and the sheriff then levies the execution upon and sells real estate, and on a trial to set aside such sale, it does not appear what was done with said notes, nor what was their value, this Court will presume that- they were returned to the defendant, and that he failed or refused to surrender other personal property, and that said sale was, in this respect, regular.</p> <p>It is clearly the duty of the sheriff to determine whether real estate, sold hy him, is susceptible of division, so as to be sold in parcels without injury to the parties; and if he decide wrongfully, and sell an entire tract, which might have been sold in parcels without injury, and a part of which might have been sold for sufficient to pay the debt, he may be liable on his bond for the injury.</p> <p>But where the sheriff sells an entire town lot, and neither the execution defendant, nor any other person interested in the property, suggests that it is susceptible of division, or demands that it be sold in parcels, the purchaser’s title will be valid, although it may be afterward found by a jury that the property was susceptible of division.</p>

<p>Where real estate is sold on credit, and bond is given for title, upon the payment by the purchaser of certain notes, and said notes have all become due and remain unpaid, the obligor in the bond should first tender a deed to the purchaser, and then sue upon all the notes unpaid, and not a part only.</p>

<p>The transfer of a part or all of his property, either directly, or by way of confession of a judgment and levy of an execution, by a debtor in failing circumstances, for the purpose of paying one debt, leaving many others unpaid or unsecured, if done in good faith, unaffected with any'secret trust, is valid, although done in contemplation, and but a few days before the execution, of a general assignment by the debtorv</p> <p>The fact that the creditor had notice of the debtor’s intention to make an assignment, would not render fraudulent a conveyance or lien obtained by him simply for the purpose of ..securing an honest debt.</p> <p>The voluntary assignment law of 1859 has no retroactive effect.</p>

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

<p>The appraisement law in force at the date of a judgment will govern sales on execution to satisfy it, when the contract upon which the judgment was rendered was executed and to be performed without the State, because our appraisement law could not, in such case, enter into and constitute a part of such contract.</p> <p>In an action to set aside a sale on execution, issued on such judgment, instituted before the delivery of a deed by the sheriff to the purchaser, and before the payment of the purchase money, it is competent to show by testimony where such contract was executed and payable.</p>

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

<p>Where advancements have been made by the father to his children in his lifetime, and he dies, his estate, out of which his widow shall be entitled to a distributive share under the statute, shall be what remains, exclusive of the sums advanced.</p>

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

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

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

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

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

<p>A conveyance executed by a person non compos mentis, and not under guardianship, is not absolutely void, but voidable only.</p> <p>No contract, valid as to one party, can be held utterly void as to the other.</p> <p>Section 11, 2 R. S. 1852, p. 233, which declares “ every contract, sale, or conveyance of any person, while a person of unsound mind, shall be void,” applies alone to “a person of unsound mind,” found to be so in the mode prescribed by the Statutes.</p> <p>Although a mortgagee, holding several notes secured by the same mortgage, which mature at different times, and one of which is due, may foreclose as to all, yet he may institute his suit to foreclose alone as to the note due, and if he do not prosecute but one such suit at the same term of Court, he shall recover costs in each successive foreclosure.</p> <p>A judgment of foreclosure on one such note can not be pleaded as a bar to a subsequent suit on the same mortgage to enforce payment of another note, because said notes may properly be considered as so many successive mortgages, and successive causes of action. The best and only legitimate evidence of the value of land at the time of its sale, is the opinion of witnesses who have personal knowledge of the land, and, from their own observation, have become acquainted with its value.</p> <p>A person, alleging unsoundness of mind at a particular time, must establish, by the preponderance of evidence, that he was not of sound mind at the given time; but when it appears that a person was, at a given time, of unsound mind, unless the unsoundness was occasioned by some temporary or transient cause, the legal presumption arises, that that state of mind continues, until the contrary is made to appear, by evidence; but if, notwithstanding such unsoundness, the person had sufficient disposing memory, as if the unsoundness consisted of monomania, not impairing his capacity to acquire or dispose of property, then it devolved upon the party interested to sustain his acts in the particular case, to show that fact by evidence.</p>

<p>■A contract, which is the foundation of an action, will he deemed to be unwritten, unless it appear, directly or inferentially, from the complaint, to have been in writing.</p> <p>.A contract made with one person for the benefit of, or to secure the payment of money, to another, may be enforced by the latter.</p> <p>An action will lie to recover the consideration for the conveyance of land, although the deed may recite that the consideration has been paid, and an action will also lie to recover a different consideration from that expressed in the deed, and not inconsistent therewith. '■One person procures a conveyance of a tract of land to be made to another person, in consideration whereof the latter agrees to maintain the former and his wife during their lives, and, after their ■ death, to pay to a third person a certain sum of money; Meld, that said third person may maintain an action for said sum of money, although said agreement was not in writing.</p>

<p>In an action against a railroad company for killing stock, commenced in the Common Pleas or Circuit Court, the complaint should aver that the killing was the result of negligence on the part of the company.</p> <p>The objections that there is a want of jurisdiction, and of a cause of action, may be raised upon appeal.</p>

<p>Where a note is made payable to an unmarried woman, and she afterward marries, and transfers the note, by delivery merely, as.a gift, to her husband, he may maintain an action on the same as his own.</p>

<p>A complaint on a note, averring that it was made and delivered to the plaintiff by the defendants, who were partners, by their agent, who signed the same, A. B., “Agt.”, and that it remains unpaid, would not be a good complaint at law; but in equity, as a general rule, wherever an agent has contracted within the sphere of his agency, and the principal is not, by the form of-the contract, bound at law, the Court will enforce it against the principal, upon principles ex aequo et bono.</p> <p>Matter in abatement can not be answered, either after or concurrently, with matter in bar, but must precede it, or it will be considered to ' have been waived.</p>

<p>If a jury, in a criminal case, retire to consider of their verdict, in the charge of a bailiff who has taken a general oath to discharge his duties as such, and they afterward return a verdict, the same will not be disturbed because the bailiff’s oath was not in the precise form prescribed by law.</p> <p>It is not error, on the trial of a prisoner for murder, to permit the State to prove that he attempted, while in jail, to escape, but was retaken.</p> <p>On the trial of a defendant on an indictment for murder, it is error to charge the jury, without qualification, that, if the defendant made an unlawful attack, or got into a fight with the deceased, upon a sudden heat, and slew him in the controversy, he would be guilty of manslaughter, at any rate, because, even under such circumstances, the defendant would be entitled to the benefit of any retreat, flight, or withdrawal from the contest which he might, in good faith, have made, or attempted to make, although he was the aggressor in the first instance.</p>

<p>APPEAL fr.om the Huntington Circuit Court.</p>

<p>The word “ ancestor,” in section 114, p. 436, R. S. 1843, must be construed to embrace all persons from whom a title by descent could be derived, under any circumstances-; that is, to be synonymous with kindred.</p>

<p>Where a mortgage is given upon real estate, to secure the payment of a debt, and the mortgagee, by the terms of the mortgage, has acquired the right only to look to the land for payment, he could transmit to another, by way of subrogation, no greater right than he had acquired.</p>

<p>It is improper for a sheriff, in selling land on execution, to announce that he will sell only a conditional estate, that may be redeemed, in a year, because the tendency of such statement is to injure the owner of the real estate, by depreciating its value.</p>

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

<p>The interest law of 1861, so far as it relieves the promissor from the penalties, or consequences in the nature of penalties, imposed by the law of 1852, on the same subject, is not a law impairing the obligation of the terms of the contract, but rather enforcing and validating them.</p> <p>Usury paid upon a debt, evidenced first by a note, made under the law of 1852, on the subject of interest, and afterward by a note given by way of renewal, under the law of 1861, may be collected under the latter law, as both notes merely evidenced the same contract.</p>

<p>Under the laws of Indiana, a married woman may devise her separate property, and it is not necessary that the husband should concur • in, or be in any way a party to, the will of his wife disposing of her separate real estate.</p> <p>■As to what constitutes a correct instruction from the Court to the jury, in a case in which the validity of a will is attacked, on the ground that it was procured by fraud, duress, or undue influence, the reader is referred to the opinion at length.</p> <p>Where a party requests, at the proper time, that the jury shall be required to return answers to special interrogatories, ’it is the duty •of the Court to propound to them such interrogatories as shall be .•applicable to, and embrace the issues and legitimate evidence in ■ -the cause, so as not to withdraw from their consideration any part •of either.</p> <p>If the answers of the jury to any such interrogatories are not appropriately responsive thereto, there should be a motion in the Court below to make them more direct, or, in some other proper mode, to remedy such defect, or such errors will not be available in this Court.</p> <p>It is the imperative duty of tie Court, at the request of either party, to direct the jury to find a special verdict.</p> <p>But, if such request is made, the party can not at the same time require that interrogatories shall be propounded to, and answered by, the jury, in the event of a general verdict being returned; and if he make the latter request, the demand for a special verdict will be thereby waived.</p> <p>In an action to set aside the will of a married woman, because it was procured by fraud, duress, or undue influence, it is error to admit testimony designed to prove that a part of the property disposed of by the will was purchased and given to the testatrix by her husband, because the will could only operate upon such property as belonged to the testatrix, both in fact and law.</p>

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

<p>In an action against a railroad company to recover the value of a lost trunk, the ex parte affidavit of the plaintiff is not competent evidence to prove the contents of the trunk, but the plaintiff himself is a competent witness for that purpose.</p>

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

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

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

<p>A joint demurrer by three parties to a complaint, which is good as to some of them, is bad as to all, and should be overruled, because a pleading, bad as to a part, is bad as to all- the parties to it.</p> <p>A complaint based upon a contract which is required, by the statute of frauds, to be in writing, should contain the original contract, or a copy of it, or an excuse for not containing either.</p> <p>Where several notes are made payable at a bank, and are sold and assigned, by the payee, to the bank, and they fall due, and all the parties thereto, except the payee, in consideration of further time, execute and deliver to the bank their bilk of exchange for the debt evidenced by the several notes, discharging the payee of the notes from all liability to the bank, the parties to such bill, in an action upon it, can not be allowed to inquire into the consideration of the notes.</p>

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

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

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

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

<p>Where several defendants demur jointly to a complaint which - states a good cause of action as against some of them, and not as against others, the demurrer should not he sustained.</p> <p>The fraudulent representations of an agent, made in the course of the business of his principal, bind the principal.</p> <p>Before a party can- be entitled to rescind a contract, he must offer to place the other party to it in statu quo.</p>

<p>Where money, lent to be wagered upon the result of an election, is the consideration of a note given for its repayment, and the maker is sued upon the note, and relies upon the illegality of the transaction to defeat a recovery, he must aver, in his answer, that the money was “ lent at the time of such wager.”</p>

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

<p>In an action to vest and quiet title to real estate in the plaintiff, if judgment goes against him below, he is entitled, on payment of the costs, to a new trial, as a matter of right, under the statute.</p>

<p>The temperance law of 1859 prescribes no penalty against the sale of intoxicating liquor, in quantities of one quart or more, on Sunday.</p> <p>An indictment for unlawfully selling liquor without license, should charge that the liquor sold was intoxicating.</p>

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

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

<p>Wherever it is necessary that any person should consent to the interposition of the defense of usury in any case, such consent can ■ be given, and made effective, without such person being a party to the suit.</p> <p>When a note, payable at a bant, contains in its body the words “protest, and notice of protest waived,” such words include a waiver of demand also, and are operative against indorsers.</p>

<p>It is not necessary that matter of set-off shall be due at the commencement of the action in which it is pleaded, but it will be available, if it is due, when it is offered in evidence on the trial.</p>

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

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

<p>Where a usurious contract is made under the interest law of 1852, and the debt is renewed by a new note, given under the interest law of 1861, the excess over legal interest paid upon such debt, both before and after the act of 1861, may be recovered by the maker of such contract.</p>

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

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

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

<p>It is error for the judge to receive a verdict out of Court, and discharge the jury, without the consent of the parties.</p>

<p>In an action upon a recognizance taken and approved by a sheriff, the facts which authorized him to take the recognizance should be averred in the complaint.</p>

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

<p>A party to a contract can not treat it^as good in part and void in part, but he must affirm it, or avoid it, as a whole.</p> <p>If a party desires to avoid a contract, either on the ground of fraud or drunkenness, he must first place his adversary in the identical situation in which he was before the contract was executed.</p>

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

<p>Suit on a written instrument, in these words: “ David Macey and James Turner against The Oity of Indianapolis and Daniel Titcombe. Wo undertake that the plaintiffs, David Macey and James Turner, shall pay to the defendants, The City of Indianapolis and Daniel Titcombe, all damages and costs which may accrue by reason of the injunction in this action. This 30th day of October, 1859. David Macey, James Turner, J. W. Patterson, Wm. Wilhison. Approved by me, this 31st day of October, 1859. John Coburn, Judge Court Com. Pleas, M. C.”</p> <p>JSeld, that in order to make it appear that the injunction was not rightfully obtained, and that Titcombe sustained legal damages '.from its issue, the complaint should show, affirmatively, that a ■legal contract for the improvement of the street was entered' into 'by the city with Titcombe; but the complaint need not aver that . 'the city had power to improve the- streets, as the Court takes judicial notice of the existence of such power.</p> <p>In suits for injunctions upon the performance of contracts for the improvement of streets in cities, and in suits upon injunction bonds arising out of them, the regularity of all the proceedings, up to the making of the contract, is open to investigation; but the judicial determination of their regularity in one, might be conclusive upon the trial as to the other suit.</p>

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

<p>Where a party contracts to sell and deliver to another a specified number of fattened hogs, “ to be of Ms best hogs, weighing two hundred pounds and upward,” the purchaser is not obliged to receive any but hogs fattened and prepared for the market by the seller himself.</p> <p>The facts, that the stipulated number of hogs, in part fattened and prepared for market by the seller, and in part by other persons, were weighed in the presence of the purchaser’s agent, without objection, and the purchaser offered to take them, provided the seller would receive, in part payment, certain certificates of deposit, which he refused, and the purchaser then refused to take them, “as they did not fill the contract,” do not amount to a waiver of the purchaser’s right to insist upon the kind of hogs contracted to be delivered.</p>

<p>The lien for taxes does not attach on personal property until the duplicate is delivered to the collector.</p>

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

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

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

<p>The taking of a mortgage to secure the payment of purchase money, is an abandonment of the vendor’s equitable lien for the same.</p> <p>The equitable lien for purchase money, once fairly and voluntarily abandoned, is lost forever.</p> <p>The surrender of a mortgage, voluntarily, on a fair contract, for other security, is an abandonment of the same, and does not revive the equitable lien.</p>

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

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

<p>In an action for work and labor done, and materials furnished, in the erection of a building, under a written contract, in which it is expressly agreed that no allowance shall be made for extra work, in order to entitle the plaintiff to recover for extra work, the pleadings should show that the extra work claimed for was expressly authorized by the owner of the building, or that it was so distinct from the building contracted for that the owner might have -accepted and used the building without accepting and using the extra work, and that such owner yet did accept and use such extra work.</p>

<p>"Where a party to an action is called as a witness for his adversary, appears, and submits to a partial examination, and then absents himself from the court-house, and disobeys legal process requiring his further attendance, such misconduct can not be considered in this Court, unless it was properly brought to the attention of the Court below.</p>

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

<p>If a person desires to avoid a subscription to the capital stock of a railroad company, on tbe ground of fraudulent representations made by tbe soliciting agent of tbe company, to induce bim to subscribe, and be suffers an unreasonable period of time to elapse before be asserts bis right to sucb relief, [seven years in this ease,] be should show a sufficient excuse for bis failure to act at an earlier date, or tbe legal presumption will be against bis right to set up said defense at all.</p>

<p>In the absence of fraud, if parties have a joint interest, the admissions of one will, in general, bind all; but proof that A agreed to keep B in stock as a blacksmith, and that A admitted that he was liable for goods got by B after a certain date, is not sufficient to establish such a unity of interest between A and B as to render • this rule applicable.</p>

<p>In a prosecution for murder, if the jury, upon the whole evidence in the cause, have a reasonable doubt whether the defendant was sane when he committed the homicide, they must also, and for that reason, have a reasonable doubt whether he purposely and maliciously committed the crime, because, without sanity, the crime, as defined by the statute, can not be committed. Hanna, J., dissenting.</p>

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

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

<p>The statutes on the subject of swamp lands (1 Gr. & H., p. 597, etseq.f make full appropriation of the swamp land fund to the payment of legitimate claims against that fund, and no further appropriation is necessary to authorize the Auditor of State to draw his warrant, in a proper case, upon those funds.</p>

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

<p>Where time is given beyond the term to file a bill of exceptions, the record should show that the bill was filed within the prescribed time.</p>

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

<p>APPEAL from, the La Grange Circuit Court.</p>

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

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

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

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

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

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

<p>If a corporation had once a legal existence, which is alleged to have been determined, it is necessary that the pleading should show and set forth particularly the manner in which its corporate powers ceased.</p> <p>If a complaint fail to state facts sufficient to entitle the plaintiff to the relief prayed- for, he will not be entitled to an injunction, or temporary restraining order, and the dissolution of either will not. be error.</p>

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

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

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

<p>The olerk’s certificate to the official character of a Justice of the Peace, should show that he was, at the time when the proceedings were bad, or judgment was rendered, a Justice of tbe Peace, duly ■commissioned and qualified to act as sueb.</p>

<p>The record on appeal to this Court must show that the bill of exceptions' was filed within the term, or the time prescribed by the Court for its filing after the term, or it will not be considered as constituting any proper part of the record before this Court.</p>

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

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

<p>In an action by the payee, in bis own name, upon a note made payable to bim as trustee, etc., tbe words trustee, etc., will be regarded as mere description of tbe person, and an answer denying bis title to, or right to recover upon, said note, should show that he has ceased to be such trustee, etc.</p> <p>Where a township trustee lends money belonging to the township, in such manner as to make the loan thereof a conversion of the money to his own use, and takes a note payable to himself, as trustee, etc., he would be liable, on his bond, for said money, but the township would have no right of action on such note.</p> <p>An answer to a complaint on a note, setting up an alleged former recovery for the amount of said note, in another action, should be accompanied by a copy of the proceedings and judgment in said action.</p>

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

<p>In 1837, A agreed, by title-bond, to convey to 33, a certain tract of land, on the payment of two hundred dollars in hand, one hundred and thirty dollars on September 24th, 1837; one hundred and twenty dollars September 24th, 1838; one hundred and ten dollars September 24th, 1839, and received the payment in hand. In 1837, B assigned his interest in the bond to C, who assigned his interest to D, and the latter paid to A the first of the deferred payments. D failed to pay the last two installments, and, after hia failure, in 1841, A, without having tendered a deed, or demanded payment of any one, sold the property to E> both A and E having notice of the assignment of the bond to D. E took possession of the property, and expended nine hundred dollars in improvements on it. In 1842, D assigned the bond to F, and in 1850, the latter tendered to A the balance due on the property, and demanded a deed, and A refused to receive the money, or make a deed, or have any thing further to do with it.</p> <p>Held, that F was entitled to recover of A the amount of money paid, with interest, because the acts of A sufficiently indicate an election, on his part, to rescind the contract evidenced by the bond.</p>

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

<p>The ease of Bingham v. Kimball, 17 Ind. 396, approved and followed.</p>

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

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

<p>A note, made payable at a place in another State, and bearing a higher rate of interest than is lawful in this State, but not a higher rate than is allowed by the law of the place where it is payable, may be enforced in this State according to its tenor.</p>

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

<p>Where a motion, based upon an affidavit, is made to set aside a default, and it is overruled, and the party excepts, and desires to have the error, if any, reviewed in this Court, he should make such affidavit a part of the record by his bill of exceptions.</p>

<p>The- act of January 27, 1853, supplemental to an act concerning liens-of mechanics, etc., only applies to persons whose business it is to feed cattle, etc., and was not intended to include an isolated ease of feeding, etc.</p>

<p>Where judgments are taken by default, a motion to set aside the default, or for a review, should precede an appeal to this Court.</p>

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

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

<p>Where a warrant of attorney authorizes A, or any other attorney of the Court in which the judgment is to be confessed, to appear and confess a judgment, and A, and B, another attorney of said Court, appear and confess the judgment, the same will be valid.</p> <p>When the sheriff is about to sell land on an ordinary judgment, it is the right of the execution-defendant, and, perhaps, of the creditor, to claim that it should be sold in parcels, and to direct which parcel shall be first offered; and, if the land can be well sold in parcels, it is the duty of the sheriff thus to sell it; and the sale is voidable, but not void, if he does not.</p> <p>Where a warrant of attorney, to confess a judgment and decree of foreclosure upon a mortgage and notes, in part due and in part not due, provides, that “ in the final judgment herein, the Court shall decide upon what subsequent default execution shall issue herein to collect the balance, in case the defendants shall pay the amount [installment] due, before the sale of the premises; and that, in case of sale, the whole of the plaintiff’s debt and costs be paid ; and the residue, if any, be paid to the defendants; and that they, (the defendants,) fix what parts, if the same be susceptible of division, be first sold,” such warrant places the judgment, confessed in pursuance thereof, upon the footing of one where the installments are all due, and the Court need make no inquiry touching the divisibility of the mortgaged property, and the sale should be for the entire amount of the debt, and it is the business of the parties interested in the property, and the sheriff, to determine 'upon the divisibility of the premises.</p> <p>The vendor’s lien for purchase money, of land sold by him, is paramount to the title of the wife by virtue of the marriage; but the wife, upon the foreclosure of a mortgage given to secure the payment of purchase money, in which she joined with her husband, is entitled to redeem, and no personal judgment can be taken against her on such foreclosure.</p> <p>A married woman can not bind herself by merely signing a warrant of attorney to confess a judgment; and her acknowledgment of the same before the clerk of the county court gives it no validity, as he is not authorized to take such acknowledgment.</p>

<p>The administrator or executor of a deceased fraudulent assignor of ehoses in action, may recover such choses in action, or their value, from the fraudulent assignee, for the purpose of applying the proceeds to the payment of the debts of the assignor, but to do this, he must allege and prove that the proceeds thereof are necessary to pay said debts; and such personal representative can not recover, as aforesaid, for the purpose of distribution to the heirs of such assignor, because such assignment, although fraudulent, is good against the assignor and his heirs.</p>

<p>On the calling of a cause, the defendant filed a general denial, putting the case at issue, but then had leave of the Court to file additional paragraphs of his answer, on or before the next calling of the cause, and on such calling, no additional paragraphs were filed, but on the next day of the term, the defendant asked leave to file such paragraphs, which was refused.</p> <p>Held, that such refusal was not an abuse of the discretionary power of the Court.</p>

<p>As to what will constitute sufficient articles of association for the formation of a corporation, the reader is referred to the opinion at length.</p> <p>In cases where, under the general traverse, a corporation-plaintiff is not bound to prove her incorporation, nul tiel corporation is a good defense; but where the corporation is bound to allege, and, if denied, to prove, that the requisite steps, under the statute, have been taken, to constitute, a valid corporation, nul tiel corporation amounts merely to the general denial, and, the latter being also pleaded, the former may be stricken out on motion.</p> <p>Where the contract sued on is one made with an existing corporation, the general traverse would be an admission of the existence of the corporation, but where the contract is made with a view to the organization of a corporate body, the defendant will not be liable, unless the corporation proves, at least, a substantial compliance with all the requirements of the law necessary to constitute such a body.</p> <p>Where, to an action on a subscription to the capital stock of a corporation, made while the corporation was in progress of organization, the subscriber pleads in bar, that he was illiterate; could not read; did not hear the articles of association read; but was induced to subscribe by a party interested in obtaining the subscription, wio falsely represented to him, that, in case hA subscribed, he would not, according to the conditions of said articles, be required to pay for his stock, until the amount of twenty thousand dollars was subscribed; and that said sum never was subscribed; such facts constitute a good defense to the action.</p>

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

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

<p>In actions upon the official bonds of township trustees, for failing to pay over to their successors in office the money of the township in their hands, the State, on the relation of the person who is trustee at the time suit is begun, is the proper party plaintiff.</p>

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

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

<p>Where a cause, by agreement, is referred to a commissioner to take-accounts, without an answer having been filed to the complaint, the consent cures the error. •</p>

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

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

<p>■There is no implied denial to an answer, under the code, as there is to a reply, and a general denial filed to an answer, consisting of ■ several paragraphs, can not be considered as a denial of a new ■ and substantive defense afterward filed by way of additional par- . agraph.</p> <p>The Court will not specifically enforce performance of a parol contract for the purchase of la-nd, where the land is incumbered by a prior mortgage, notwithstanding the purchaser may have made part payment of the purchase money, and he may recover back the money so paid.</p>

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

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

<p>The reader is referred, for the points decided herein, to the opinion at length.</p>

<p>It is error, in an action against husband and wife to foreclose a mortgage, to render a personal judgment against the wife for any deficiency after the sale of the mortgaged property.</p>

<p>A merely voluntary executory contract, for the conveyance of land, will not he specifically enforced; nor will a voluntary deed be corrected of mistakes, on the application of the grantee against the grantor; but it will be on the application of the grantor against the grantee, where, by mistake, the conveyance is for a larger estate than was intended.</p> <p>But an executed deed, made upon no consideration, whether one be expressed or not, is valid, and operative against the grantor.</p>

<p>The summons is a part of the record, where there is no appearance. In rendering judgment on money demands, it is proper to render the judgment for the aggregate amount of the principal and interest due at the date of the judgment, and the same will bear interest from date.</p>

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

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

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

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

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

<p>Where the property of an insolvent debtor is conveyed to a person in trust, to be by him sold and disposed of, for the benefit of the creditors of the assignor, and such person accepts said trust, and in discharge of the duties thereof, converts all of said property, except one claim, into money, and distributes the same, pro rata, among all the creditors, except one, to whom he pays nothing, and, then, from motives of sympathy, indulges the party owing said uncollected claim, until the same is barred by the statute of limitations, and is thereby lost, such trustee will be liable for the amount of said claim, to the creditor to whom he had paid nothing, to an amount sufficient to make him equal, in the distribution of the entire proceeds of said property, with the other creditors.</p>

<p>In applications for the location or change of public highways, pending in the Common Pleas or Circuit Court, on appeal from the Board of Commissioners, all errors, not properly presented to the • Court of Commissioners, will be considered by the Appellate Court, to have been waived.</p> <p>Where viewers report that a proposed location, or change, of a pub-lie highway, will not be of public utility, it is not competent for the appellate, or inferior court, to order such location, or change, to be made.</p>

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

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

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

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

<p>Where a debt is paid in paper, in the similitude of bank bills, which is unauthorized and void, but is at the time current, and the person, to whom the same was paid, brings his suit to recover upon the original demand, the defendant may plead in bar of his action, that the plaintiff, to whom such paper was paid, passed the same, at par, to other persons, who returned the same to the defendant, and that the defendant redeemed the same, so that the plaintiff suffered no injury by reason of the reception thereof.</p> <p>And a reply to such defense, admitting the delivery of such paper, and averring that the bank, issuing the same, was not organized, etc., but was in violation of th^ laws and constitution of the State; and that the notes, etc., were issued in violation, etc, but were in the form and similitude of bank notes, and were intended to be used, etc., as bank notes, but had no legal value, and were unconstitutional—void; and, that, therefore, the payment in the same was not valid, etc., is bad on demurrer, because it fails to take direct issue on the facts averred in such defense, or to set up other facts sufficiently responsive thereto.</p>

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

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

<p>Prior to the witness-law of 1861, where a party to an action was called as a witness by the adverse party, and, on his examination, gave testimony not responsive to the inquiries addressed to him, then the party calling him might offer himself as a witness as to the matter embraced in said testimony.</p>

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

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

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

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

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

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

<p>Where an action is begun in the name of an administrator, and before its determination he dies, and the name of an administrator, de bonis non, is substituted as plaintiff, objections to the manner of the appointment of the latter can not be noticed in this Court, unless they were properly brought to the attention of the Court below.</p> <p>After an action has been dismissed by the plaintiff, and then reinstated upon the docket, the voluntary appearance of the parties to the action, and submission of it for trial to the Court, amount to a waiver of the dismissal.</p> <p>Where a Court gives time to file a bill of exceptions, and the same is not filed within the time given, it will not be considered as forming any part of the record, in this Court.</p>

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

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

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

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

<p>Action on a note for one thousand dollars. Answer: That the note was executed in part performance of the following contract: “ I have this day sold to B. and H., four thousand fleeces of wool, more or less, at forty-nine cents a pound; wool to be washed on the sheep, to be put up in good merchantable order, free from tags, to be delivered in Springfield, at the depot of the Great Western Railroad, on the 20th of July, 1857. Received on the above contract one hundred and seventy-five dollars. Balance to be paid in cash on tbe delivery of tbe wool, except one thousand dollars, for which a note, payable at ninety days, is to be given; ” and that there was a breach of the contract by the plaintiff, in his failure to deliver wool answering to the terms of the contract, and relying upon the contract as a warranty.</p> <p>Held, that the contract did not contain a warranty, but an executory agreement to deliver washed wool, but that, if the wool had been present and delivered at the time of the execution of the contract, it would have amounted to a warranty that the wool delivered was of the quality specified in the contract.</p>

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

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

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

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

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

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

<p>MOTION in the Supreme Court for direction to the clerk.</p>

<p>An election for county Auditor is not void by reason of an omission to -give public notice that it would take place.</p> <p>Where it appears, prima facie, that acts, or events, have occurred, subjecting an office to a judicial declaration of being vacant, the authority having the power to fill such vacancy, supposing the . office to be vacant, may proceed, before procuring a judicial declaration of the vacancy, to appoint, or elect, according to the forms , of law, a person to fill such office.</p> <p>But if, when such person attempts to take possession of the office, he is resisted by the previous incumbent, he will be compelled to try his right by an application to the proper courts.</p> <p>But, if he finds the office, in fact, vacant, and can take possession, uncontested by the former incumbent, he may do so, and so long as he remains in such possession, he will be an officer de facto, and, should the former incumbent never appear to contest his right, he will be regarded as having been an officer de facto and de jure.</p> <p>And, if such former incumbent should appear, after possession has been taken against him, the burden of proceeding to oust the actual incumbent would rest upon him, and if it should then appear, that, before the appointment, or election, of such incumbent, facts had occurred justifying a judicial declaration of a vacancy, it will then be declared to have existed, and such appointment, or election, held valid.</p>

<p>Od the assignment of a land office certificate of the location of land, there is no implied warranty of title.</p> <p>In a matter embracing neither fraud nor covenant, the purchaser acts at his own risk, and voluntarily foregoes any remedy, if the title should fail. The rule, caveat envptor, applies.</p> <p>Where a transfer of real estate, or any interest therein, is defective in form, the transferree can not, for that reason alone, recover back •the money paid therefor, but must first demand a correction of the error in the transfer.</p> <p>A contract can not, either for mistake or fraud, be rescinded in part, and affirmed in part, but must be rescinded in toto, or not at all.</p>

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

<p>The case of Snowden et al. y. Wilas et at., in this volume, followed.</p> <p>Suit for overflowing land. The defendant answered, setting up an unsealed and unacknowledged, but signed and recorded, contract in writing, made between the plaintiff’s grantor and others, and the defendants, as follows: “ Whereas, A, B, and C, contemplate erecting a dam across the Tippecanoe river, about six miles below Winnemac, near B’s, on, etc., in section 9, etc., and contemplate the erection of mills below said dam, to the hight of six feet; and whereas, we, the occupants and owners of lands adjoining and contiguous to said proposed dam, and to the river above said dam, likely to be affected by back-water from said project, and erection of such proposed mills, of public utility; therefore, to encourage the said A, B, and C, in such undertaking, we do hereby assent and agree, that said men, or any of them, or their substitutes, or assigns, or heirs, may erect such dam, to the hight aforesaid, and for ourselves, and heirs, and assigns, do waive and release all damages that may ensue from the erection of such dam, and from backwater caused by the dam;” and further averred, that, under it, the dam and mills, costing thirteen thousand dollars, were erected; that one thousand dollars had been expended on the dam at the time the plaintiff purchased the land; that he had notice, and stood by and saw said expenditures, and paid one thousand five hundred dollars, etc., of Said purchase money, after said work was completed, etc.</p> <p>Held, that said answer set up a good bar to the action.</p>

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

<p>This Court will not disturb the judgment of a Court below, where it is not manifestly wrong, and the evidence tends to sustain it.</p>

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

<p>An information for larceny, which avers, “ that the defendant is now confined in the jail of Floyd county, charged with the felony herein set forth, and that he has not been indicted by any grand ' jury of said county,” is sufficient to show jurisdiction in the Court of Common Pleas to try the cause.</p> <p>The 11th section of the Common Pleas Act has not been so far repealed by implication, as that it may not be the subject of amendatory legislation. It has only been modified, not repealed.</p>

<p>When time is given for the filing of a bill of exceptions, the record should affirmatively show that the bill was filed within the time limited, or it will not be considered as forming any part of the record before this Court.</p>

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

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

<p>Representations, by the payer of a note, that it is all right, and will be paid, made to a purchaser of such note, after he has become the owner thereof, shall not operate as an estoppel against the payer, nor can such representations, repeated by the purchaser thereof to any person to whom he may sell the same, have such effect in favor of such second purchaser.</p>

<p>In an action to foreclose a mortgage, where some of the proceedings may be irregular, but the result of the action is such, that no party is injured, or has any cause to complain, this Court will not very closely examine tbe alleged irregularities.</p>

<p>Where an allowance made by a Court of Common Pleas, against an estate, is the foundation of an action, a transcript thereof should be filed with the complaint.</p>

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

<p>This Court will not notice a bill of exceptions which was filed two years after the expiration of the time limited for its filing, although filed with the consent of the Court below; if filed without the consent of the opposite party, and probably not, if filed with such consent.</p>

<p>ít is error for the Court, after a jury has heard the evidence, and been charged by the Court, and retired to consider of their verdict, to send its written instructions to the jury at their room, without consent of both parties.</p> <p>The jury should receive their charge, and all subsequent instructions or explanations touching their duties, in open Court,' in the presence . of the parties.</p>

<p>An answer, setting up a former recovery, should contain a transcript of the record of the former cause.</p> <p>The third sub-section of section 617, under the occupying claimant’s law, does not limit the recovery to the value of the rents and profits which had accrued before the rendition of the judgment in the original or ejectment suit.</p> <p>In actions under said law, where the Court finds that, without the improvements, no rents and profits would have accrued to the time of rendering judgment, it is error to charge the occupants with such rents and profits, as have accrued by reason of his improvements alone.</p>

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

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

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

<p>This Court will not presume that a note was made beyond its jurisdiction.</p> <p>But even where the note was made in a foreign country, our laws, when appealed to for its enforcement, prima facie, furnish the rule of decision, unless by affirmative pleading, another rule is shown to be applicable.</p>

<p>This Court -will take judicial notice of a county created by a public statute, but not of one created by county commissioners under the. general law.</p> <p>The time of the erection of a new county by the commissioners, where it becomes material on a question of jurisdiction, must be proved.</p> <p>The Court will judicially notice the time of the sessions of Courts, held in such new county, pursuant to law.</p> <p>A suit, commenced to foreclose a mortgage, in the proper county, would not be defeated by the division of the county afterward.</p> <p>The division of a county would not be complete, until a Court was so far organized therein as to enable suits to be commenced in such new county.</p> <p>Where a note, executed and payable in another State, bears a higher rate of interest than is allowed in this State, and suit is instituted upon it in this State, it is not necessary to plead the law of the foreign State.</p> <p>In such case, the Court presumes the common law to be in force in such other State (of the United States), with one or two exceptions,, and as that law prescribes no rate of interest, the contract will be presumed valid by the existing law, when, and where, it was "made.</p> <p>On a foreclosure, where there is no order or judgment over, for any deficiency that may remain after the sale of the property mortgaged, there is no personal judgment.</p>

<p>Before a judgment can be rendered against a person, on the agreement of bis attorney, where the person does not personally appear, and has not been personally summoned, the attorney must produce and prove written authority from his client to consent to such judgment.</p>

<p>Proceedings on a motion for a continuance are no part of the record, unless made so by a bill of exceptions.</p> <p>A voluntary appearance, in full, to a cause of action, waives all defects in process or publication.</p> <p>A defense assuming to answer the whole, but only answering a part of a cause of action, is bad on demurrer.</p> <p>The law, as to penalties and costs, in force at the time of rendering judgments, governs.</p> <p>But, as to the obligation of the contract, the law of its date, if to be executed where it is made, generally controls.</p>

<p>In eases where there is a conflict of testimony, and the evidence of the winning party, taken by itself, will support the judginent l'eMered,' it must be affirmed.</p> <p>Testimony for the impeachment of a witness should go to his character at the time of the trial.</p>

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

<p>In 1828 the legislature of Indiana, by law, constituted certain persons Seminary Trustees, for the county of Switzerland, for the special purposes in the act mentioned; among which were the selection of a site for a county seminary, the procurement of title thereto by donation or purchase, the solicitation of donations of lands, money, or property, to aid in the establishment of such a seminary, the preparation of a plan for the erection and management thereof, and to report their proceedings to the legislature.</p> <p>In 1834 the legislature passed an act to incorporate the seminary, referring, in its preamble, to the former act, appointing trustees, and their report, and petition for a charter for said seminary, and the last-named act constitutes A, B, and others, and their successors in office, trustees of the Switzerland County Seminary, with power to sue and be sued, plead and be impleaded, answer and be answered unto, contract and be contracted with; to hold estates, real and personal, by gift, grant, contract, bequest, devise, or otherwise, and to all intents and purposes to be a body politic and ■ corporate* to have perpetual successioh, to have a common seal, and the same to change at pleasure. It was, in said charter, made the duty of said trustees to erect and establish a seminary in said . county, and conduct the same upon some approved plan, so as to' secure to the greatest possible number of the children of said county, at the least possible expense, the advantages thereof. In April, 1834, C conveyed to said trustees, by way of donation, a site for said seminary, and said trustees erected and established the Same thereon.</p> <p>The Constitution of the State of Indiana, adopted in 1851, by see. 2, of art. 8, provided for the sale of county seminaries, and the property held by them, for the purpose of organizing a general and uniform system of common schools, and the legislature, in 1852, in pursuance of said Constitutional provision, enacted a law prescribing the manner in which said seminaries and property should be sold, and, in 1854, in the manner prescribed by said law, the Switzerland County Seminary was sold to D, who received a conveyance therefor, and instituted his suit for the possession thereof.</p> <p>Held, that, by reason of the provision in the tenth section of t,lie first article of the Constitution of the United States, prohibiting any State from passing any law impairing the obligations of contracts, the provision in the Constitution of the State of Indiana, authorizing the sale of said seminaries, and the law enacted in pursuance thereof, as to said Switzerland County Seminary, are uneon- , stitutional and void, and that said purchaser acquired no title by said sale.</p>

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

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

<p>An information which charges that the defendant, within two years of the commencement of the prosecution, did, knowingly, encourage a negro, named A. B., who had come into the State about the 1st of December, 1860, to remain in the State, by giving him employment and furnishing him a home, is good, and not subject to be quashed.</p>

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

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

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

<p>The Circuit Court of one county has no jurisdiction to adjudicate upon the title to land in another county, where no part of the land, the title of which is involved in the action, is situated in the county of the forum.</p> <p>A creditor, in the absence of a statutory prohibition, may, at any time, before liens have attached on his property, make a general or partial assignment to a trustee for the benefit of his creditors, with preferences, or he may assign the whole for the benefit of a single creditor.</p> <p>The mere reservation, in such an assignment, of the surplus, “if any there should be,” to the debtor, will not vitiate the assignment.</p> <p>The omission, in an assignment, to limit the time for the assignee to apply the proceeds of the assigned property, is not objectionable; because the law, in such cases, requires it to be done in a reasonable time.</p>

<p>It is not error to refuse a continuance asked for because tbe causes of action were not filed with the complaint, either by copies or the originals, where it appears that such causes of action were, a reasonable time before the trial, handed to the defendant’s attorneys by the plaintiff’s attorneys.</p> <p>A county is a corporation, with power to contract debts.</p> <p>Debts of a county, evidenced by ordinary county orders, payable to A, or bearer, do not stand on the footing of those contracted under a special grant of power.</p> <p>A corporation is a person, and a county is a corporation, and it will be presumed tbat tbe county auditor, in drawing orders, did bis duty, and tbat sucb orders were given upon a consideration, until tbe contrary appears, and sucb orders will constitute a prima facie cause of action.</p>

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

<p>Where a defendant, in a prosecution for bastardy, has a preliminary, hearing before a justice on a certain day, which is also the first day of the term of the Circuit Court for the county, he should be recognized, if at all, to appear at the next, and not the then present, term of said Court.</p> <p>It would, therefore, be irregular and improper to docket the prosecution, and assign it for a day of the then present term, and proceed to call the defendant, take defaults, forfeit recognizances, ete.</p>

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

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

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

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

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

<p>APPEAL from a decision upon a writ of habeas corpus.</p>