Volume 2 — Blackford's Indiana Reports

—Ejectment by Doe on the demise of Rapp against Harrison, Badollet, and Buntin, for a house and lot in Vincennes. Plea, not guilty. Verdict and judgment for the plaintiff below.

ERROR, to the Martin Circuit Court.—Debt on a writing obligatory for 146 dollars and 66 cents, executed by Clements to Harris, and assigned by the latter to Oliver, and by Oliver to Davis. The obligation is dated on the 10th of June, 1817, and is payable on or before the 1st of December, 1818. Plea, actio non, because, &c. on the 10th of June, 1817, Harris represented to the defendant that he owned _ three lots of land in Franklin county, and offered to sell them to him.

<p>ERROR to the Clark Circuit Court.</p>

<p>ERROR to the Monroe Circuit Court.</p>

—Trespass by M'Kec against Hays,and several others, for breaking into his close and taking away his goods. Plea of justification. Replication in denial, concluding to the countiy. No similiter. Verdict of guilty against Hays—damages 149 dollars and 20 cents; and of not guilty as to the others. Judgment against Hays agreeably to the verdict.

<p>The single fact, that the creditor has taken, a judgment by confession from theprincK pal debtor with a stay of execution for six months, cannot be pleaded by the surety in bar of an action against him by the creditor. The plea in such case, to be valid, must also show that the creditor could, by the ordinary proceedings at law, have collected the money sooner from the principal debtor, than by the course which he had pursued; and that the time was given to the principal without the surety’s consent* The issue on nul tiel record is for the Court, notforthe jury, todecide.</p> <p>Issues on thiee pleas in bar to the whole cause of action. The first triable by the Court; the second and third by a jury. The second and third were tried and found for the plaintiff. Held, that the plaintiff could not have judgment, until he had also succeeded on the first issue.</p>

<p>ERROR to the Marion Circuit Court.</p>

<p>Slander for charging a man. with illicit intercourse with his wife’s sister. Held, that' the words -did not coataiá a charge of incest, but only of fornication or adultery.— Held, also, that as, at the time of speaking the words, neither fornication nor adultery was an indictable offence, the words were not actionable.</p>

<p>ERROR to tbe Jefferson Circuit Court.</p>

—’This was an action of debt brought in the name of the governor, for the use of Gill, founded on a sherifi’s bond, in which action Stribling, the sheriff, and his sureties were defendants. Issue was joined upon the performance of the condition of the bond. Yerdictand judgment for the defendants.

<p>In a suit against the administratrix of «/2. on a bond in which hp was surety for B. as sheriff, a judgment previously obtained against B. on the same bond is inadmissible as evidence for the plaintiff.</p> <p>If the administratrix, being sued on the bond, had given notice of the pendency of the suit to B. and there had been j udgment against her, that judgment would have been conclusive against B. in a suit against him by the administratrix.</p> <p>If a devastavit be established against an administrator, his sureties cannot afterwards controvert the devastavit.</p> <p>The Court cannot give an unqualified charge to the jury, that the evidence is insufficient to support the action, unless in cases where it woijld be bound to set aside the verdict if for the plaintiff.</p>

-.—Ejectment for a lot of ground in Bromnstown, in which suit Wayman is the lessor of the plaintiff and JVaylor is the defendant. Pica, the general issue. The plaintiff proved that the defendant, being the owner of the lot in question, became replevin-surety of record for the payment of a judgment against Beatty, in favour of Steele & MCarty.

<p>ERROR to tiie Floyd Circuit Court.</p>

<p>ERROR to the Jackson Circuit Court.</p>

<p>ERROR to the Fayette Circuit Court,</p>

<p>An order by the Court of filiation and bastardy, may be enforced by scire facias or debt on the order against the putative father, or on the recognizance against those who have entered into it, in the name of the state, on the relation of the party entitled.</p> <p>The scire facias or declaration, in such case, must describe the cause of action of the party claiming, show by what authority he has had the care of the child, and why he is entitled to the benefit of the order for maintenance.</p>

<p>ERROR to the Wayne Circuit Court.</p>

—This was an action of debt. The declaration, so far as respects the points noticed 'by the Courtj is as follows: Franklin Circuit, Franklin county, viz. Benjamin I. Gilman, administrator of Joseph Gilman, deceased, complains of Jacob G. Capp, Judgment on the demurrer for the plaintiff as administrator ás aforesaid.

<p>A bill drawn on an administrator in these words, “Please to settle 80 dollars, out of my part of the estate, with Nathan Harness, and this my order shall be your receipt for the same,”—is nota valid bill of exchange; being payable only out of a particular fund.</p> <p>A declaration against the acceptor of such a bill, depending alone for its support uporj the bill and acceptance, contains no cause of action, whether the acceptance be absolute or conditional.</p> <p>The administrator, on whom the above-named bill was drawn, promised the holder that if he would retain the bill, it should be paid whenever a certain farm should be sold: Held, tirat as the consideration of this promise arose subsequently to the intestate’s death, no action would lie against the administrator on the promise, so as to charge the estate of the intestate.</p> <p>The promise of an administrator, to pay a debt of the intestate, need not be averred in the declaration to be in writing; the statute of frauds applying to the proof and not to tiie declaration. '</p>

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

<p>The doctrine—that the separate debt of one partner should not bé paid, out of thé partnership estate, until all the debts of the firm are discharged—is correct; but it'does not apply until the partners cease to have a legal right to dispose of their property as , they please. It is applicable only, when the principles of equity are brough^to interfere in the distribution of the partnership property among the qreditors.</p> <p>Those equitable principles operate on the property remaining «in the possession of the partners, and-embrace all that has been fraudulently disposed of; but they do not pxtend to such as has been previously transferred by the firm in good faith.</p>

—Action oh the case by Farquar and Collins agaiiist Bosley, sheriff of Orange county, for a false return to a writ of fieri facias. Plea, the general issue. Yerdict and judgment for the plaintiffs.

—This was an action of replevin by Harris, administratrix, against M’Faddin. The declaration is in the usual form. The defendant pleaded specially, that he took the goods by virtue of a distress warrant, directed to him as a constable of the township, issued by a justice of the peace, commanding him to distrain the goods of the plaintiff for one year’s rent due to Modisett, the plaintiff’s landlord. The warrant is set out in the plea.

<p>ERROR to the Clark Circuit Court.</p>

<p>ERROR to the Marion Circuit Court.</p>

<p>The act of 1827, giving the Supreme Court jurisdiction in certain cases decided by the Circuit Court on appeal from the judgment of a justice of the peace, is prospective only, and does not apply to cases determined by a justice before the taking effect of the act.</p>

<p>The act authorising a defendant, in actions of assumpsit, to plead a want or failure of consideration specially, is cumulative, and does not take away 'the party’s right, ' existing before the act, to avail himself of such a defence under the general issue.</p>

—Assumpsit by Rankin, £¡0gianc/^ an¿ j\satíhéá{s, commissioners df Scott county, against While, administrator of White, for money had and received by the intestate to the use of the plaintiffs.

<p>ERROR to the Rush Circuit Court.</p>

<p>ERROR to the Shelby Circuit Court.</p>

<p>ERROR to the Marion Circuit Court.</p>

<p>In an action on a penal bond, conditioned for the delivery of property at a certain time and place, the declaration need not aver a demand of the property at the place. Jiliter, if the condition be for the payment of money.</p> <p>A tender and refusal of the property (or that which is equivalent) at the time and place fixed by the contract for its delivery, vests the property in the creditor; and puts an end to his right to sue upon the contract.</p> <p>The plea of tender, in such a case, need not state that the defendant was afterwards ready, or that he brings the property.into Court.</p>

<p>One of two subscribing witnesses to a bond, being called to prove its execution, denied his signature: Held, that the other, if he could be procured, should be examined; but if he could not be found, secondary evidence might be resorted to.</p> <p>If a subscribing witness deny his signature, the case stands in the same situation as if his name wore not on the instrument.</p>

—Hendricks brought an action of trover against Jamison for a horse. Plea, not guilty. Verdict and judgment for the plaintiff below.

<p>A declaration contained two counts. The 1st stated that the defendant, on his unen7 closed land in the county, cut a tree so that it was nearly ready to fall, and set it on lire; and that the tree a/tenvards fell upon and killed the plaintiff’s horse. The 2d count stated, that the defendant, knowing the plaintiff’s horse to be running at large in the unenclosed lands of the county, and maliciously contriving to injure the plaintiff, unlawfully and negligently cut a tree in the county and set it on fire; and that the tree afterwards, in consequence of the cutting and burning, fell upon and killed the plaintiff’s horse.</p> <p>Held) that the declaration contained no cause of action.</p>

<p>ERROR to the Knox Circuit Court.</p>

<p>ERROR to the Floyd Circuit Court.</p>

<p>ERROR to the Dearborn CircuifCourt.</p>

<p>The surety in a recognizance before a justice of the peace, for the principal’s appear* anee at the Circuit Court to answer a criminal charge, cannot discharge himself by a sunender of his principal to the justice.</p> <p>Tiie surrender in such cases, accompanied by a certified copy of the recognizance, may be made to the sheriff.</p>

<p>ERROR to the Bartholomew Circuit Court.</p>

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

<p>ERROR to the Hendricks Circuit Court.—Petition for a rehearing.</p>

—Bates sued Berry before a justice of the peace on a promissory note, and obtained judgment. Berry appealed to the Circuit Court, and judgment was there rendered in favour of Bates.

<p>If an agent execute an obligation for his principal not warranted by the power, the principal, being unapprised of the nature of the obligation, will not be bound by it; though he was in the room when the obligation was executed, and though his subsequent agent conceived himself authorised to comply with similar obligations so executed by the first agent.</p> <p>Although one partner cannot bind his co-partner by deed, yet a deed executed by one for himself and paitner, in the other’s presence and by his authority, is the deed of both.</p>

—This was an action of debt brought by L. Wynn, J. Wynn, and L. Abraham, executors of T. Wynn, deceased, against J. B. Hiday, on a writing obligatory, executed by the defendant to the plaintiffs’ testator for tbe payment of 62 dollars.

<p>Although, in a justice’s warrant for the apprehension of an offender, the time when the offence is alleged to have been committed be subsequent to the date of the warrant, the constable is justifiable in executing it.</p> <p>If the defendant, in pleading a warrant in justification of an arrest, aver that he was an acting deputised constable of the county, the word deputised may be considered as surplusage; and the plea will be good, though it do not set out the defendant’s appointment, nor allege that .the warrant was shown to the plaintiff, nor that it wa? returned.</p> <p>Though two offences against the party be charged in the warrant, yet, if the justice has jurisdiction over both, the constable is bound to execute it.</p> <p>A person acting as a special constable to execute a warrant, is authorised to command assistance in case of opposition,</p>

<p>Assumpsit against an administrator on promises of the intestate. Pleas, non-assumpsit, the statute of limitations, and plene administravit. Judgment against the defendant de bonis propriis. Meld, that as neither of the pleas was false within the defendant’s knowledge, the judgment de bonis propriis was erroneous; but that as Shis was only a cleiicál mistake, time would probably be given for its amendment below, were there no oilier error in the case.</p> <p>In an action against anvadministrator, if, on the pleas of non-asstimpsit and plene administravit, the jury find for the plaintiff, they should also find the amount of the assets in the defendants h&ncls nnadministered.</p> <p>If two replications be filed to one plea^ the defendant may demur specially for the duplicity ; but a rejoinder to the replications cures the objection.</p> <p>If the plaintiff, in an action against two, pioceed to judgment against one alone, and the record do not contain a return of the writ that the other had not been found, and a suggestion of such a return, the judgment will be reversed 'on error. -</p>

<p>ERROR to the Dearborn Circuit Court.</p>

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

<p>A nolle prosequi to the whole declaration has the effect, not of a retraxit^ but of a discontinuance; and is no bar to a subsequent suit for the same cause.</p> <p>An attorney at law has no authority to enter a retraxit; that being a perpetual bar.</p> <p>A judgment will not be reversed because a motion for a new trial, made on the ground of the verdict’s being contrary to evidence, has been overruled; unless it be clear that the verdict is not warranted by the evidence.</p> <p>If the payee of a bill of exchange, accepted for the drawer’s accommodation, give time to the drawer without the acceptor’s knowledge, the latter is not thereby discharged; though the payee knew that the acceptance was made for the drawer’s accommoda- , tion. ^</p>

<p>ERROR to the Lawrence Circuit Court.'—Assumpsit by Blackwell against The Board of Justices of Lawrence county. General demurrer to the declaration, and judgment for the defendant.</p>

—This was an action of assumpsit by Justice against The Board of Justices of Vermillion County. Plea, the general issue. Verdi'ct and judgment for the defendants.

<p>The fine, on a conviction of retailing spirituous liquors without a licence, belongs to the county for the purposes of education; but this circumstance need not be stated iq the judgment.</p> <p>A judgment against a defendant, in a criminal cause, will not be reversed because the recoid does not show that the indictment was endorsed, “atrue bill5’> by the foreman of the grand jury.</p> <p>A licence, to retail spirituous liquors for three months, was glinted by the board of county justices. The licence, as appeared on its face, had been granted on tho payment of fifty cents. Held, that, under the statute, no licence to keep a tavern orto retail spirituous liquors, could be gianted on the payment of a less sum than five dollars; and that, therefore, the licence in this case wa suprima facie, absolutely void.</p> <p>The jury are tbe judges of the facts, both in civil and criminal cases; but they are not, in either, tho judges of the law. They are bound to find the law as it is propounded £o them by the Court* They may, indeed, find a general verdict, including both the law and the facts; but if, in such verdict, they find the law contrary to the instructions of th.s Court, they thereby violate their oath.</p> <p>Whether evidence be competent or not, is always a question for the decision of the Court,</p>

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

—Indebitatus assumpsit for goods sold and delivered; a count on a quantum valebant; and one on an insimul computassent.' Moore was the plaintiff below, and Hóagland, Hall, and Ballard, were tbe defendants. Plea, non-assumpsit. Verdict and judgment for tbe plaintiff. ‘

—Replevin by W.S. Chinn against A. W. Russell. The defendant filed two avowries and one plea. The plaintiff pleaded to the avowries and replied to the plea. Demurrer to the plaintiff’s pleas, and issue on his replication. Judgment on the demurrer for the defendant.

<p>ERROR fo the Johnson Circuit Court.</p>

—The bond on which this suit was brought, was executed by A. C. M’Coy and G. S. M’Coy, the defendants below, to A. Elder, the plaintiff below, conditioned for the delivery, at a particular time and place, of certain property to the sheriff, upon which he had levied an execution in favour of the plaintiff

<p>If, to assumpsit on a promissory note, the defendant plead a failure of consideration on account of the non-delivery of goods, the plaintiff may reply generally that the consideration has not failed. The note is prima facie evidence of a consideration; and the want or failure of consideration, in such case, must be pleaded and proved.</p> <p>Assumpsit on a promissory note. Two pleas: 1st, non-assumpsit, and issue; 2dly, as to part, a failure of consideration. Replication as to the second plea, demurrer, and judgment for the plaintiff. Held, that, whilst the first issue was undisposed of, the plaintiff could not have final judgment for the amount of the note.</p>

<p>If a witness be objected to as interested, and his interest be proved by other witnesses, the party calling the witness has no right to examine him on his voire dire; that right belonging alone to the party who makes the objection.</p> <p>If an action of replevin be brought for taking several articles, and, on an issue as to the plaintiff’s property in them, he only prove himself'entitled to a part,—the defendant has a right-to a return of the others and to damages for the taking of'them. In such case each party succeeds, and each is entitled to his costs.’</p> <p>An avowry for rent due need not show that ,a warrant, founded on oath, had been taken out before making the distress; nor that the goods distrained belonged to the tenant; noV need it set out the particulars of the landlord’s title.</p>

<p>ERROR, tp the .Marion Circuit Court.</p>

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

—Sarah Layman brought an action of assumpsit against Thomas Whalen, for a breach of promise of marriage. The defendant pleaded the general issue. Verdict and judgment for the plaintiff.

<p>'Case by vi. against B. for slanderous words. Plea, that the defendant had heard from C. the charges mentioned in the declaration, and that, at the time the defendant spoke the words, he stated that C. had told him so. Replication, that the defendant had spoken and published the words falsely and maliciously with a knowledge that they were false, and with the intent alleged in the declaration. Held, on special demurrer, that the replication was good.</p>

<p>A trust estate in real property, as separate from the legal ownership, may either bé created by an express declaration of the trust; or it may be raised upon certain facta by implication of law.</p> <p>The statute of frauds requires all declarations of trust in land to be proved by written testimony; but those trusts which arise by the mere operation of law, are excepted out of the statute and may be proved by paro) evidence.</p> <p>If A. purchase land with his own money, and the deed be made to B., a trust results in favour of A., provided there be no circumstances in the case to rebut this presumption of the law.</p> <p>To a bill in chancery by the grantee of a cestui que trust against the trustee to obtain the legal title, the grantor need not bé a party either as complainant or defendant,</p> <p>'¡A. contracted to sell to B. certain real estate, in consideration that B. should give up a note held by him against A., and pay loA. a small sum of money. The giving up of the note to «2. was the principal part of the consideration. B. subsequently pledged the note to a third person, and absented himself from the country for 7 years, without paying any part of the purchase-money. Held, that A. was discharged from the contract.</p> <p>The estate of a cestui que trust may be sold and conveyed by him, as well as any other estate.</p> <p>A release, by the grantee, of the covenant of warranty contained in a conveyance of real estate, does not affect the validity of the conveyance.</p> <p>The estate of a bare trustee is not subject to be sold on an execution against him.</p> <p>The sale of veal estate on a void execution is a nullity, and vests no title in tire purchaser.</p> <p>A complainant in chancery may prove, by parol evidence, in order to show a resulting trust, that the purchase-money for real estate conveyed to another was paid by himself, though the deed state that the money was paid by the grantee, and the answer contain a denial of the trust.</p> <p>The absolute right of property and the right of possession in a note, which had been pledged for the payment of a debt, become, on payment of the debt, vested in the pledgor; and if the note be afterwards converted by the pledgee to his own use, he is liable to the pledgor in an action of trover.</p> <p>In the sale of personal property, not in market overt, the general rule is, that, though the purchase be bona fide and for value, the purchaser receives no better title than that of which the seller was possessed. But bills of exchange and promissory notes are exceptions to this mle: when they are originally payable to bearer; or when, in the first instance, they are payable to order and afterwards by a blank endorsement become payable to bearer; they pass by delivery: and the purchaser who uses due caution, pays a valuable consideration, and takes them in the common course of business, has a good title against all the world, whether the seller had any title or not. A note payable to order, however, cannot pass without an endorsement either by the payee, or by some person in the payee’s name and by his authority.</p> <p>The trust, in real estate conveyed to M.., resulting in favour of B. in consequence of his payment of the purchase-money, is a kind of arbitrary implication raised, to stand until some reasonable proof be brought to the contrary; and if the money was paid for the express purpose of vesting in ^2. both the beneficial and legal interest, no trust can result in favour ,of B.</p> <p>u2. made a verbal contract for the purchase of a town lot, and, during »2.’s absence from the country, partly with his own money but principally with «2.’s property, completed the contract for «2., and took tlie deed in the name and for the benefit of *2. Held, that >/2.’s subsequent ratification of Bds acts, made him liable to B. for the amount paid for him by B.; and also rendered the lot as «/2.’s property liable, from the date of the deed, to a judgment against him in favour of B•</p>

<p>In an action of debt before a justice of the peace, on a bond in the penalty of 175 do!* lars conditioned for the delivery of property, the plaintiff, in the statement of his demand, claimed 81 dollars and 25 cents: Held¡ that the justice had jurisdiction j the sum actually demanded not exceeding 100 dollars.</p>

<p>field, that an entry in the partnership boohs, by one of the partners in the business of a saw-mill, charging himself with a boat which he had built at the mill,—might be introduced by him as evidence, inter alia, to prove the boat to be his individual property.</p>

<p>ERROR to the Dearborn Circuit Court.</p>

<p>ERROR to the Ornen Circuit Court.</p>

<p>A. entered into partnership with B. in the business of tanning; and C. bound himself in a covenant to B. for Ads conduct as a partner for a certain time. Held, that, in an action by B. against C. on the covenant, the admissions of A., made after the expiration of the stipulated time, were not admissible as evidence against C.</p>

<p>After the alienation of real estate, and before the death of the grantor, -the value of the estate was greatly enhanced by improvements made by the grantee. Held, that the dower of the grantor’s widow should be assigned according to the .value of the property at the time of the alienation.</p> <p>A title-bond, conditioned for the conveyance of real estate on payment of the purchase-money, was executed, and possession at the same time given to the obligee. The purchase-money was afterwards paid, and a title obtained by the purchaser. Held) that the date of the bond must be considered the period of alienation, in estimating the value of the property with-a view to the dower of the obligor’s widow.</p>

<p>*/£., ¿?,, and C. entered into a recognizance for JiSs appearance on the first day of the term of the next Circuit Court, to answer a charge of larceny. On the first day of the term Jl. failed to appear. He also made default on the second day, when the recognizance was declared forfeited, and a scire facias issued thereon returnable to the next term. Plea to the scire facias, that no presentment or indictment had been found against though, since the date of the recognizance, two grand juries had been impanneUed. Held, on demurrer, that the plea was insufficient.</p>

<p>ERROR to the Dearborn Circuit Court.—Ejectment. Plea, not guilty. Verdict and judgment for the defendant.</p>

<p>ERROR to the Franklin Circuit Court.</p>

<p>A complainant in chancery may, on payment of costs, dismiss his bill at any time before a final hearing, provided he be not in contempt.</p> <p>The complainant’s mere failuie to comply with an interlocutory order of the Court, does not of itself so place him In contempt, as to prevent him from dismissing h\a bill on payment of costs. ' . • . ■</p>

<p>ERROR to the Union Circuit Court.—Ejectment. Plea, not guilty. Verdict and judgment for the defendants. 1</p>

<p>ERROR to the Marion Circuit Court.</p>

<p>A justice of the peace, under the statute of 182?, has jurisdiction in-actions of debt on p,enal bonds conditioned for the performance of covenants, when the penalty does nó,t exceed 100 dollars. . ,</p> <p>No statement of the demand, except the filing of the bond, is in such case necessary; nor need there be any suggestion of breaches. . ' M</p> <p>If a defence be filed, which is not relevant to the cause, it may be rejected on motion.</p> <p>The conditioiisof a delivery-bond showee^ that the property was to be delivered to the person to whom the execution was, directed, but it did not state his name, jHeld) that the omission of .the sheriff’s name did hot rendeV the bond void, but that the ambiguity thereby occasioned might be explained by extrinsic evidence.</p>

<p>APPEAL from the Marion Circuit Court.—Assumpsit. Plea, the general issue. Yerdict and judgment for the defendants.</p>

—Slander for words charging the plaintiff with having sworn false, on a certain trial, before a justice of the peace. Plea, not guilty.

<p>ERROR to the Union Circuit Court.</p>

<p>ERROR to the Clark Circuit Court.</p>

<p>ERROR to the Decatur Circuit Court.</p>

<p>The winning of any sum of money however small, at a game with cards, is an indictable offence of which the Circuit Court has exclusive jurisdiction.</p> <p>Offences punishable by a fine not exceeding three dollars, bef&ng exclusively to the jurisdiction of justices of the peace. Other offences, punishable by a fine which may be more or less than three dollars according to circumstances, are cognizable only •' by the Circuit Court.</p>

<p>ERROR to the Dearborn Circuit Court.</p>

<p>The pendency of an action of slander does not, of itself, render the defendant’s sale and conveyance of real estate void as to the plaintiff ; though a judgment be after-wards recovered against the defendant, and he have no other property to satisfy the debt.</p> <p>The pendency of an action is constructive notice of the matter involved in that suit; and a purchaser of the property which is the immediate object of the pending action will be affected by it, as a purchaser with notice.</p>

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

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

<p>Trespass de bonis asportatis. Plea, that the defendant, as a justice of the peace, had entered a fine against the plaintiff for an assault committed by him in the defendant’s presence. Held, on demurrer, that the plea was bad, because it did not show but that the fine was imposed in the offender’s absence.</p>

—This was an action of debt by Perry against Chinn and Parks, founded on a delivery-bond payable to Perry, the execution-plaintiff.

<p>J1Band C. executed a note to D. for the payment of money. The name of C. was afterwards erased without the knowledge of the other obligors, and a judgment obtained against Jl. and B. A bill was filed by ¿L. and B. in older to have the judgment enjoined, averring their ignorance of the erasure at the time of the trial at law. Held, that the erasure was a defence purely legal, and that the complainants’ ignorance of the erasure as averred, was no ground for the interposition of a Court of chancery. ¡</p>

<p>If the owner of real estate covenant to make a title to it on payment of the purchase-money, and the same be afterwards paid, the obligor is not liable to an action for not conveying, unless the deed have been previously demanded.</p> <p>Qwtertf, whether the purchaser, in such case, should tender the deed to the vendor for execution.</p> <p>In the case of a breach of the covenant of seisin, or of warranty, contained in a conveyance of real estate, or of a breach of a covenant to convey, the measure of damages, if there be no fraud, is the purchase-money with interest.</p>

<p>ERROR to the Ripley Circuit Court.</p>

<p>If exceptions be taken to some parts of an answer in chancery, and the Court consider the exceptions valid, the defendant may be ordered to answer over so far as the exceptions extend, but ho cannot be required to answer over generally.</p> <p>If the answer to any particular charge in a bill be not sufficiently explicit, the complainant should file exceptions to that part of the answer; but if instead of doing that, he acquiesce in the answer, the charge must be proved or it will be disallowed.</p> <p>If any particular claim in a bill be not answered, the complainant should insist on an answer, and if such answer be refused, he may take a deciecpro tanto by confession; and then, if the charge is sufficiently explicit, it may be recovered without further proof. But should the complainant, instead of pursuing that course, bring the case to a hearing on the merits, he can only entitle himself to the claim by proving it.</p> <p>If the charge in a bill be not slated with sufficient certainty, the complainant cannot, even after a decree pro confuso, have a final decree, unless he establish his demand by satisfactory evidence.</p>

<p>If the contimtanco of a causo be applied for, on the ground that a witness who had been subpoenaed does not attend, the return of the sheriff must be produced.</p> <p>An affidavit for a continuance, on account of the absence of witnesses, must clearly show their materiality.</p> <p>A plaintiff in slander, having first proved that the defendant had spoken to third persons the words laid in the declaration, may prove, in support of the declaration, that the-defendant had spoken the same words in answer to the plaintiff’s interrogatories.</p>

<p>A sheriff’s acknowledgment that he had collected money cm an order of sale, cannot be proved to sustain an action for the money against the sheriff’s surety, unless the acknowledgment was made whilst the sheriff was acting officially in relation to the receipt of the money.</p>

<p>ERROR to the Posey Circuit Court.</p>

<p>Tire issues must be made up belike the jury are sworn, excepting only that a similiter may be dispensed with.</p> <p>An affidavit by the plaintiff’s attorney, that ho had left the replication on the clerk’s table with the papers in the cause, and that it had afterwards come into the deponent’s possession by mistake, does not show, with sufficient certainty, that the replication had been properly filed.</p>

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

<p>ERROR to the Gibson Circuit Court.</p>

ACTION on the case for the disturbance of an exclusive right to vend merchandise, &c. Plea, a lease, &c. Demurrer to the plea, and judgment for the defendants. For the facts see the preceding case of Taylor v. Owen and others.

<p>If a judicial officer, whether possessed of a general or a special jurisdiction, act erroneously or even oppressively in the exercise of his authority, an individual at whose suit he acts is not answerable, as a trespasser, for the error or misconduct of the officer. But if a judicial officer whose jurisdiction is special and limited, transcend his authority and act in a case of which he has no cognizance, his proceedings are coram nortjudice, and no person can justify under them.</p> <p>The defendant, in an action of false imprisonment, justified under a writ of attachment ordered, at his instance, by a Circuit judge. The writ was issued against the plaintiff, for a contempt in disobeying a writ of injunction granted by the judge. The injunction was granted, and the writ of attachment was ordered and issued, in vacation. Meld, that the defence was insufficient; the judge having no authority, in vacation, to order the writ of attachment.</p>

<p>If a debtor pay his judgment-creditor a sum equal to the amount of the judgment, and thereby cause the judgment to be assigned as a payment to another of his creditors, the transaction does not discharge the judgment, but the same continues valid in the hands of the assignee.</p>

—Assumpsitby Shezoel against Givan. The defendant pleaded, inter alia, non-assumpsit except as to a certain sum, and as to that a tender. Verdict and judgment for the defendant.

<p>ERROR to the Marion Circuit Court.</p>

<p>if a man have criminal intercourse with a married woman, the offence is adultery and not fornication.</p>

—A suit was brought in a justice’s Court on a sealed note, hj Kimble, the assignee, against Adair, the maker. The note reads as follows: “On or before the 1st of March next, for value rec’d. I promise to pay John Spangler or order'25 dollars; provided the said Spangler has not made any compromise, or received any pay, for timber cut on the land which he purchased of W. H. Eads and has this day given up.

<p>ERROR to the Marion Circuit Court.</p>

<p>ERROR to the Fayette Circuit Court,</p>

<p>The statute of 1827 requires that, injustices’ Courts, special matters of payment and set-off should be stated in writing; but, in other cases generally, special pleas are not necessary in those- Courts.</p> <p>In a cause commenced in a justice’s Court, the defendant may, without pleading the general issue, give any matters in evidence which, under that pl’ea, are admissible in other Courts.</p> <p>A party has the same right to a jury, in a.cause commenced by notice and motion, that he has in other cases.</p> <p>If the sheriff, a party in the cause, have summoned the jurors selected under the statute of 1827, the array may, for that reason, be challenged.</p> <p>If a purchaser of real estate at sheriff’s sale refuse to pay the purchase-money, and the property be sold for a less sum at a second sale, the liability of the first purchaser for the difference, under the statute of 1825, may be established by parol evidence.</p> <p>The sheriff is not obliged to take the mere word of any person, who may bid at a sheriff’s sale, that he is the agent of the execution-creditor.</p> <p>A justicejof the peace has jurisdiction of a cause commenced by notice and motion, if the notice set forth a claim, not exceeding 100 dollars, for which debt or assumpsit would lie.</p>

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

<p>ERROR to the Jefferson Circuit Court.</p>

<p>In 1804, the father of B. and C. delivered to Bin England, 75/., with directions to pay the same to <7. on the latter’s arjival in America» In 1818, C. came to rica where B, was ther resident, and accounts on both sides immediately commenced between them, and continued running until 1826. The 75l. was charged in the .accountof C.against B. Held¡ that these mutual accounts, including the75Z., wero not within the statute of limitations; some of the items having been furnished within five years before the commencement of the suit.</p>

<p>ERROR to the Franklin Circuit Court.</p>

<p>The assigaee Qf a debt,—to obtain certain securities for the same which had been executed by the debtor to the assignor’s attorney, and assigned by the attorney to a third person,—filed a bill in chancery against the attorney and his assignee. Held, on demurrer, that the complainant’s assignor should have been made a party. ' .</p>

<p>A subsequent conveyance of real estate, although first recorded, will not prevail against a prior one which is not recorded until after the expiration of the time prescribed by Jaw* if the subsequent purchaser had actual notice of the prior conveyance.</p>

<p>A debt due by Jl. and B. to C. cannot be set off, either at law or in equity, against a debt due'by C. to’jA. alone.</p> <p>There is no difference, on the subject of set-off, between Courts of law and equity: the rule is the same in both Courts. ' ■ ,</p>

<p>ERROR to the Carroll Circuit Court.</p>

<p>ERROR to-the Owen Circuit Court.</p>

<p>ERROR to the Wayne Circuit Court.</p>

<p>ERROR to the Vigo Circuit Court.</p>

<p>If a person, indebted to several others, absent himself from the state, and leave real estate to which he is entitled in equity, but no property subject to legal process; the creditors may unite in a bill in chancery to have their claims liquidated, and to make the property liable for the amount.</p> <p>The Court, on overruling a demurrer to a bill in chancery, should give the defendant a reasonable time to make and file his answer.</p>

<p>On overruling a demurrer to a declaration, in an action on a penal bond conditioned for the performance of covenants, in which declaration the breaches are assigned, the order ofthe Court is,—that the plaintiff ought to recover his said debt and his damages on occasion of the detention thereof; but that judgment should not be given until the truth of the breaches assigned is inquired into, and the damages are assessed. 1 '</p> <p>After this, if the Court, by agreement of the parties, have inquired into the damages, the opinion is given and entered,—that the plaintiff has sustained damages, by reason ofthe breaches assigned, to the amount of-.</p> <p>The next andiast steps to be taken are, the rendition of the final judgment for the debt in the declaration mentioned with costs; and the award of execution for the damages assessed with costs.</p> <p>If a capias ad respondendum be issued against two, and be executed'on óneonly, the suit abates as to the other on whom the writ was not served; and no judgment can be rendered against him.</p> <p>A declaration on a bond for security for costs, stating that the plaintiff sues for himself and others, officers of .the Court, is bad. Any person interested may sue for himself on the bond, and obtain a judgment for the penalty; -and, afterwards, any other person interested may, upon that judgment, have a-scire facias. No one, however, has a right to sue for himself and others, officers, &c.</p> <p>It is not sufficient, in an action on such a bond, to state that the defendant has not paid the costs, without setting out the amount of the costs incurred.,</p>

<p>ERROR to the Tippecanoe Circuit Court.</p>

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

<p>A debtor was discharged, under an insolvent law of Ohioans to;lhe imprisonment of his person, from a debt due to the payee on a promissory note. The parties resided in Ohio) and the debt was there contracted. Held, that the debtor might plead the discharge, so far as respected the imprisonment of his person, in bar of an action brought against him in this state on the note by an assignee thereof.</p>

<p>A plea in abatement to an action by a corporation, that the charter is forfeited in consequence of a mis-user or non-user of the franchises, cannot be good; unless it show the forfeitureto have been juiliciaJly declared at the instance of the government.</p> <p>If a promissory note he given to a company as a corporation, the maker is estopped from contending that, at the date of the note, the company was not a corporation.</p> <p>A promissory note dated the 1st of July, 1826, payable to the President and Directors of the Farmcis and Mechanics1 Bank of Indiana, at their office of discount and deposit at Lawrenceburgh, on the 1st of July, 1829, is not entitled, under the statute, to days of grace; nor is it a paper in which the corporation is prohibited by its charter from holding an interest.</p>

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

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

<p>The jurisdiction of a Court of Chancery extends to the accounts of administrators, though settled in the Probate Court, if there be evidently a mistake or fraud in the settlement.</p> <p>A trustee, no matter how or from whom he derives his authority, cannot purchase the trust-estate so as to make a profit to himself. He is not prohibited from purchasing; but his purchase, when made, is for the benefit of the cestui que trusty who may, if he apply within a reasonable time, have a re-sale. If the property be offered for sale a second time, and there be no advance, the trustee is held to his purchase.</p> <p>If an administrator, authorised by an order of Court to sell, at public sale, the real estate of his intestate for the payment of debts, purchase the land himself at the sale; and, afterwards, sell the same at an advanced price; he is liable to account for the profits to the heirs, for whose benefit the administrator’s purchase must be considered to have been made. And the effect is the same, whether the purchase be made by the administrator alone, or jointly with another; or whether it be made in person or by an agent.</p> <p>If, owing to the conduct of the administrator, any uncertainty exist as to the amount of the profits made by him on the purchase, he will be chargeable with the largest amount which, from the circumstances, he can be presumed to have realized.</p> <p>It is a rule, both at law and in equity, “that if a person having charge of the property of another, so confounds it with his own that it cannot be distinguished, he must bear all the inconvenience of the confusion; and, if it be a case of damages, the damages given against him will be to the utmost value of the property.</p>

<p>ERROR to' the Franklin Circuit Court.—Debt by Porter against Brackenridge, administrator. Special plea in bar. Demurrer to the plea, and judgment for the defendant.</p>

<p>ERROR to the Owen Circuit Court.</p>

<p>ERROR to the Union Circuit Court.</p>

—This cause was sub-milted to the Court at the November term, 1839, when the judgment of the Circuit Court was reversed. Vide the opinion, ante, p. 36G. A re-bearing was afterwards granted; and, at the present term, the following opinion in the cause was delivered.

<p>ERROR to the Mien Circuit Court.</p>

<p>having obtained a judgment against a county, purchased, under an execution on the judgment, a number of town lots_ belonging to the county. Afterwards, at a public sale of these lots by the county, B. bought one of them for a small sum with notice of the previous sale, paid the purchase-money, took a receipt for the 3ame, and entered into possession. .<3. died, and the county made a compromise with his heirs, who released their interest in the said lots to the county, oil receiving back the purchase-money paid by M..; the purchasers at the said public sale, I!. among the rest, agreeing by parol to release their interest in the lots to the county on being re-paid their purchase-money. The county tendered to B. his purchase-money for tile lot he had bought, which he refused to accept; and he refused also to execute the release. C., afterwards, with JB.’s knowledge and without any objection by B., purchased the last-named lot of the county, and received a deed from tho county for the same.—A bill in chancery, filed by B. against the county to obtain a title for the lot thus bought by O., was dismissed for want of equity.</p>

<p>Petition by a wife for a divorce. The marriage was solemnized in Kentucky, where the parties then resided. The husband there, in 1822 or 1823, deserted his wife, •and has ever since lived in adultery .with another woman. Two or three years after the desertion, the wife removed to this state, where she has since that time resided. The husband was never resident here; and the notice to him of the pendency of this suit was by publication. jELeld¡ that the Circuit Court, under the statute, has jurisdiction of the cause.</p> <p>The constitutional provision, prohibiting laws impairing the obligation of contracts, does not extend to general laws authorising divorces; provided 'the legislature, in the exercise of its power, does not pass beyond the rights of its own citizens, and act upon the rights of the citizens of other states.</p> <p>In a suit for a divorce, the lex domicilii is the rule of decision.</p>

<p>The provisions of the 77th section of the act of 1824, relative to crimes and punishments, requiring certain actions to be brought within one year next after the offence committed,—do not apply to prosecutions under the act for the support of illegitimate children.</p>

<p>ERROR to the Sullivan Circuit Court.</p>

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

<p>The indorser of a note, under our statute, warrants two things: 1st, that the note is valid and the maker liable to pay it; 2dly, that the maker of the note is solvent and able to pay it.</p> <p>If the indorsee sue the maker, and fail on the ground that the note had been obtained without consideration, the indorser is not bound by this judgment against the validity of the note, if notice was not given him of the pendency of the suit. But the indorser may show, in bar of an action against him by the indorsee under those circumstances, that the consideration of the note was a good one.</p> <p>The indorsee of a note, obtained from the maker without consideration, has a right, as soon as he discovers the imposition, to sue the indorser for having assigned him a note which the maker is not liable to pay.</p>

<p>ERROR to the Ozoen Circuit Court.—Covenant by Duignan and Boggs against Kelly. Demurrer to the declaration and judgment for the plaintiffs.</p>

THIS was a suit in equity, transferred from the Knox Circuit Court previously to a decree, in consequence of the interest of the Circuit Judge.

<p>ERROR i'o the Orange Circuit Court.</p>

<p>Trespass and false imprisonment. Plea, that the plaintiff, by his false representations respecting the circumstances of a third person, had induced the defendant, then in Louisiana, to sell there on a credit to such third person a boat laden with com; that the plaintiff and the purchaser absconded without paying for the corn, and were fugitives from justice; that the defendant, for these reasons, made oath before a justice in this state, that the plaintiff and the purchaser had swindled him out of the price of his corn; that a warrant for swindling was accordingly issued by the justice against the parties complained of, upon which the plaintiff was arrested, taken before the justice, and by him committed to gaol, which is the same trespass, &e.—Held, on demurrer, that the plea was insufficient.</p>

<p>APPEAL from the Vigo Circuit Court.—Bill in chancery by Johnson and others against Modisett and Clarke. Decree o.f the Circuit Court for the complainants.</p>

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

<p>ERROR to the Posey Circuit Court.</p>

<p>Case by JL. against B. Counts in malicious prosecution for perjury, and in slander for words charging the same crime. Plea, that %A. had committed the peijury alleged. Held, that B. might prove, on the trial, that Jl. had given advice as to the best mode of commencing the suit against B.¿ in support of which JL* was said to have afterwards committed perjury; and might also prove that bad received information, before he gave his evidence, tending to show the want of any foundation for the suit against B.</p> <p>Held, also, that the defendant, under theplea in this case, might show that there was a probable cause for his prosecution against the plaintiff.</p> <p>If a witness, with an intention to deceive the jury, swear so as to make an impression on their minds that a fact material in the cause is different from what it really is, and from what he knows it to be, he is guilty of perjury.</p> <p>If, after the examination of a witness is closed, his re-cxamination be asked for and refused, this Court will presume such refusal to be correct, unless the record show that there was a good cause for the re-examination.</p> <p>The plaintiff, in the above-mentioned cause, in order to show malice in the defendant, had a right to prove that the slanderous words, charged in the declaration* had been spoken after, as well' as befoie, the commencement of the suit.</p>

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

<p>Debt by Jl. against administrator of 0., on a bond of the Intestate for 860 dollars. Damage, 100 dollars. Pleas, nonest factum and plene administmvit Verdict for the debt, and for 4S1 dollars and 60 cents damages; in all 1,341 dollars and 60 ceuts. Judgment for the same, de bonis propriis, with costs.</p> <p>Held, that the judgment is erroneous: 1st, because it is de bonis propriis ; and, 2dly, because it is for a greater sum than is laid in the declaration.</p> <p>Held, also, that the jury should have not only found the amount of the debt and damages, but also tbe amount of assets in the defendant’s hands.</p>

<p>No confession of interest made by a witness, after a party is entitled to his 'testimony, can vender him incompetent.</p> <p>To exclude a witness on the ground of interest, he must appear to be interested in favour of the party who calls him.</p> <p>If the defendant believes the plaintiff’s evidence insufficient to sustain the action, he should obtain the decision of the Circuit Court on the subject, by asking instructions to the jury, by a motion for a new trial, or in some other way. . Without some such previous proceeding, though the evidence be set out in a bill of exceptions, the Supreme Court can take no notice of the question.</p> <p>If, in the course of a witness’s examination, he appears from his own answers to be in • competent, the party against whom the evidence is given, should move to strike out the testimony. But, if no objection be made below to the evidence, its admission cannot be assigned for error.</p>

<p>If a motion for a new trial, made on the gr6und that the verdict is unsupported by the evidence, be overruled, and the opinion be excepted to,—the bill of exceptions must show that it contains all the evidence given in the cause.</p> <p>If the evidence be contradictory, and there be ground for an honest difference of opinion as to the propriety of the verdict, the refusal to grant a new trial is not error.</p>

<p>ERROR to the Jefferson Circuit Court.—M'Kay was the plaintiff below, and Picquet the defendant.</p>

<p>A. agreed in writing to sell, to B. a tract of land' for- a certain- sum. Payment to be made by • B.}s delivering to Aor to his agent C*., a boat and cargo of produce by the first rise of the Ohio river, sufficient to take boats over Certain rapids in the river. If the boat, Sic. could not be prepared by the time specified,.the payment was to be subsequently made in a diffeient manner. The conveyance1 to be made when the land should be'fpaid for. B. took possession of the land; and delivered the .boat and cargo to 0., as ASs agent, but not till several'weeks after the first rise of the river, sufficient for the purpose above-mentioned. C. took the property to JV. Or- . leans; but what became of the proceeds did not appear.</p> <p>Held, that 0., as the special agent of A. to receive the property, had no authority to receive it after the first rise of the river, Sic. j and that the subsequent delivery of . the same to him, did nbt entitle B. to a conveyance of the land from A.</p> <p>Held, also, that supposing C. to have been the general agent of Astill the delivery, under the circumstances of the case, of the boat and cargo to C., after the time specified in the contract, was not binding on A.</p> <p>It is a general rule, that the principal is bound by the acts of his general agent, though the agent exceed his private'instructions. But the rule does not apply to cases, where the person dealing with the agent is apprised of the existence of the private instructions., .</p>

<p>A person under a prosecution for a capital offence about to be submitted to a grand juay, may challenge any of the grand jurors for cause, but not peremptorily.</p> <p>One of the giand jurors in such a case, in answer to a question put to him by the prosecuting attornej', said, “that he thought he could not in his conscience find any man guilty of an offence that would subject him to death.55 Held, that the juror was disqualified.</p> <p>Challenges to petit jurors are first made by the prisoner, and afterwards.by the prosecuting attorney.</p> <p>The record in a capital case showed, that, after thepetit jury were sworn, the Court adjourned from one day to the next, but.it did not show that the jury were legally disposed of during the adjournment. Held, that a verdict and judgment against the defendant must, under those circumstances, be considered erroneous.</p>

<p>A judgment by default having been rendered against Jl.y on a note previously executed by him to i?., the former filed a bill in chancery to enjoin the judgment—stating thejiote to have been given, and the judgment rendered, on a certain condition which had not been complied with. The answer, which was supported by the depositions, denied the complainant’s allegations. The Court dismissed the bill.</p> <p>The want or failure of consideration is a good defence to an action at law on a note; but if the defendant neglects to make this defence, and suffers judgment by default, he cannot, without a süong case, be relieved in chancery.</p> <p>If land devised be afterwards sold by the devisor to a stranger, the devisee takes nothing by the devise.</p>

<p>If a wife commit an indictable offence, without the presence or coercion of her husband, she alone is responsible for the offence.</p>

<p>A person against whom suits were depending for bona fide- debts, confessed a judgment in favour of another, without consideration, to defiaud his creditors. The debtor’s real estate was purchased, under an execution on this judgment, by the judgment-creditor. Judgments were afterwards obtained, by the bona jide creditors, in tiieir respective suits, and executions issued thereon and returned “no property found.” The Court, on a bill filed by the bona Jide creditors, set aside the fraudulent judgment, execution, and sale, and ordered the land to be sold to satisfy the complainants’ demands.</p>