Volume 2 — Indiana Reports

<p>The plaintiff obtained, partition, of certain land. His right to claim partition was based on sheriff’s deeds for two shares of said land; he had never taken actual possession. Held, that actual possession was not essential in such case, provided the defendant was not legally disseized.</p> <p>A distinction is recognised between the mere possession of the plaintiff’s share by a third person, or by the defendant and a legal disseizin.</p> <p>The possession of an execution-defendant is not adverse.</p> <p>A strong suspicion is not sufficient, but the evidence should be clear and undoubted to charge the purchaser with notice of title in a third . person.</p> <p>In proceedings for partition, when the title is disputed, the plaintiffs will be sent to law to have the title established; but when the question arises on an equitable title set up by the defendants, the Court of Chancery will decide, for equitable titles belong to it, and the parties cannot be sent to law.</p>

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

<p>All Courts possess inherent power to correct clerical mistakes in their proceedings.</p>

<p>Uncertainty in an award renders it void.</p> <p>Courts of Equity will entertain jurisdiction to cancel or set aside an instrument void on its face.</p>

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

<p>Debt on the bond of a pilot and his sureties, charging- negligence in piloting certain boats. The defendants offered to prove that the pilot possessed sufficient skill to pilot a boat, but the Court refused to permit this to be given in evidence. Held, that there was no error in this; the question was not whether he was capable of piloting a boat skillfully, but whether he did so in the present case.</p> <p>The evidence is usually closed with the plaintiff’s rebutting- testimony; if the defendant would introduce further testimony, he must show some special cause.</p>

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

<p>Petitions for partition under the statute are proceedings a,t law and not in chancery.</p> <p>A trial without an issue is erroneous, whether the judgment be for the plaintiff or the defendant.</p>

<p>Bill in chancery presenting the following facts : In 1836 A. executed, to B. a bond binding himself to execute to the latter, in 1838, a deed for certain land, and acknowledging the receipt of the purchase-money. Prior to this, A. had sold and conveyed the land to 0., taking his notes for the purchase-money, secured by mortgage. C. paid the first note, and A. obtained judgment on the second, which was unsatisfied. C. made improvements. JjaH|^L./l. assigned the mortgage to P. as an indemnity for becomhyj^^^^^HyL. on a certain note for 500 dollars. E. and F. obtained C., and the sheriff sold the land to P., on execution, nj^^^^^^need, and he took possession. Z>. paid 230 dollar's of A.’s debt, s^JHPnociorfcgage to him is a security but for 300 dollars, being the value of the property. A. and C. are insolvent. The Court decreed that P. should pay B. 72 dollars and 64 cents; that the equity of redemption be foreclosed, and B. recover costs of P. Held, that the decree was erroneous; that the bill could not be sustained either as one for a specific performance, or for the delivery up and cancellation of the mortgage, or as a bill to redeem the mortgage, or as a creditor’s bill.</p>

<p>Upon the failure of the clerk of the Circuit Court to pay over any money in his hands to the county treasurer, it is made the duty of the county auditor, by the statutes of 1843, to enforce the payment by suit; but a suit cannot be brought against such clerk for such failure on the relation of the board of commissioners.</p> <p>The statute of 1838 made it the duty of the sheriff and not the clerk to pay jury fees into the county treasury.</p>

<p>Trial of tire right of property. The goods were taken as the property of B. on a writ of attachment against him by A. B. had executed a deed to C. for the goods in trust for the payment of certain specified debts; the deed provided that after the debts were paid, the overplus should be paid by C. to B.; afterwards B. executed another deed to 0. in trust for the payment of other specified debts, after the debts first specified wore paid, and providing that the overplus be paid to B.; after the execution of the deed and delivery of the property, A. took out an attachment and had it levied on said goods. C. obtained judgment. Held, that there was no error, as the record did not show that A. proved, on the trial, independently of his affidavit, the existence of a debt due him. from B.</p>

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

<p>Wheii evidence is objected to, and the particular reasons of objection are not pointed out to tbe Court at the time, and shown by the record, the reception of the evidence cannot be assigned for error.</p> <p>The presumption is, that matters of set-off to a judgment, which accrued before the rendition thereof, were included in the judgment, though such presumption may be removed by proof that the items were not so included. ,</p>

<p>Scire facias against A. as replevin-bail for the stay of execution on a judgment obtained by B. against C. A. pleaded, inter alia, that a former writ of scire facias had issued against the defendant for the same cause of action, and that, upon a trial before a justice, judgment was rendered in his favor. To this plea the plaintiff replied that the judgment in the former suit was a judgment of non-suit only. The defendant rejoined that it was a judgment on the merits. The plaintiff surrejoined that he elected to be non-suited before the justice gave any opinion or judgment on the merits. Trial by the Court and judgment for the plaintiff. Upon the trial the plaintiff offered in evidence a transcript of the proceedings of the former suit, which exhibited the following: “ Come the parties, and the cause having been fully heal'd and inspected, and all things touching the same, the plaintiff elected to be non-suited. It is, therefore, considered that the plaintiff be non-suited,” &o. The defendant offered to prove, by parol testimony, that the cause was submitted for decision; that the justice pronounced an opinion; that after the parties left the Court the plaintiff stated to the justice that he preferred to be non-suited; and that judgment was rendered accordingly. Held, that the judgment introduced was one of non-suit; and that it was not admissible to prove collaterally that the judgment was wrong.</p> <p>A levy upon property of sufficient value is presumed to be a satisfaction of the debt until the property is legally disposed of by the officer holding it.</p> <p>An officer is required to use ordinary diligence in the preservation of property taken on execution, until the property is applied.</p> <p>When property is taken from an officer by a writ of replevin, he cannot return that fact, and take out another execution until the suit is determined.</p> <p>If the officer voluntarily or collusively suffers property to be retained by the replevin-plaintiff, after judgment in the officer’s favor, it is an injury to the execution-defendant; and it is the duty of the officer to use ordinary diligence to procure a proper judgment on the replevin-bond.</p>

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

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

<p>An execution issued upon a judgment, after the death of the defendant, is void.</p> <p>C., the owner of real estate, married, there being, at that time, judgments against him, binding his real estate. Subsequently, additional judgments were rendered against him, being also liens on his real estate, upon which latter judgments, executions were issued. C. then died. After his death, said real estate was sold by virtue of the executions on said previous judgments, the purchaser bidding and paying the full value of the property, with an understanding, by all parties concerned, that the money so bid and paid was to be applied — first, in payment of said elder, and, secondly, of said junior, judgments; and the money was so applied. Held, that the purchaser should have been subrogated to those elder judgment-creditors, as against the widow of C., and that she would be compelled to contribute to the payment of said elder judgments or receive dower in the residue only of the real estate over and above the amount of said judgments.</p> <p>The executor of an insolvent estate should not apply the personal assets first to the redemption of incumbered real estate for the benefit of the widow.</p>

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

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

<p>Assumpsit on the following: “ Clinton, March 19,1847. We agree to pay Thomas Johnson 200 dollars on account- of freight to be taken from this place to New Orleans, by Samuel Case, in a flat-boat; to be paid after said freight is delivered at New Orleans, as per contract with said Case. By order from said Case. James Dudley and Co" Held, that Johnson could not recover unless Case had complied with his contract.</p>

<p>The act of 1849, giving, in certain counties therein named, exclusive jurisdiction of certain offences to justices, contained no saving clause as to existing cases, and deprived the Circuit Courts of jurisdiction over them.</p>

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

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

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

<p>In an action of slander, the charge complained of being perjury, under a plea of justification, the same degree of evidence is required as would convict in a criminal prosecution for that offence; but a failure to sustain that plea is not lo be considered in aggravation of damages.</p>

<p>The defendant entered into a written agreement to deliver to the plaintiff a certain quantity of pork at Fairhaven, for certain prices, and delivered a portion of it, when a verbal agreement was made by the parties that the residue on the contract, and all the defendant had, be delivered at Hamilton, for a higher price, within a reasonable time. Assumpsit was brought for the failure of the plain$ff to so deliver the pork at Hamilton. There was no averment or proof of a waiver by the plaintiff of his right to demand a delivery of the remainder under the written contract, or that such a waiver formed a part of the consideration of the contract on which suit was brought, or was accepted by the defendant. Held, that the contract was void under the statute of frauds, and the plaintiff could not recover.</p>

<p>In an action of disseizin, damages can be recovered up to the time of trial.</p>

<p>Administrators are not liable for tlie mismanagement of tbeir co-administrators, where they are not themselves in any manner culpable.</p>

<p>An original and a cross-bill make but one suit, and when the original is dismissed, the dismissal carries with it the cross-bill.</p> <p>A plaintiff in chancery has a right to dismiss his bill at any time before final hearing, upon payment of costs, if he be not in contempt.</p>

<p>A paper in a cause is filed when it is delivered to the clerk and received by him to be kept with the papers in the cause.</p> <p>The caption (being the prefatory statement of the clerk upon the record preceding the copy of the indictment,) stated, that the indictment was found at the October term, 1846, by certain men " duly impanneled, sworn, and charged as grand jurors in and for the county of Allen, at said term.” Held, that this was sufficiently explicit.</p> <p>An indictment charged the offence to have been committed on a certain day of a certain month “ in the year eighteen hundred and forty-six.” It was urged that the indictment was defective in omitting the words “ of our Lord ” between the words " year ” and “ eighteen.” Held, that the objection was not valid.</p> <p>When a year is mentioned in legislative or judicial proceedings, and no mention is made of any other system of reckoning, the Christian calender is understood to be used.</p> <p>An indictment may contain several counts charging the same transaction, though amounting to a felony, in different modes, in order to meet the proof of the case; and the indictment cannot be quashed for this cause, if it do not appear that different transactions or felonies are charged.</p> <p>If an indictment contains several counts charging the same larceny in different modes, the defendant cannot, without showing other cause than what appears on the face of the indictment, on motion, compel the prosecutor to elect on which count he will proceed; but the prosecutor may apply the evidence relating to the larceny to whichever count it will sustain ; but if, on the trial, the evidence tends to prove distinct larcenies which might be embraced in the indictment, the prosecutor will be compelled to elect as to which of the larcenies he will rely upon on the trial, and confine his evidence to that.</p> <p>The indictment charged a larceny of certain county orders, and described them as follows: “ five county orders drawn by the auditor of the county of Allen, in the state of Indiana, on the treasurer of said Allen county, one of these comity orders being of the denomination of 87 dollars and 27 cents, and of the value of 25 dollars; one other of said county orders,” &c., (describing each order after the manner of the first,) “of the personal goods,” <fcc., “ then and there feloniously did take and cany away contrary,” &a. Held, that the description was sufficient, and that the larceny was sufficiently described without using the word “ steal.”</p> <p>The fact that stolen property is found upon the person of the defendant can always be given in evidence in. a prosecution for the larceny against him; but the strength of the presumption which it raises against the accused depends upon all the circumstances surrounding the case.</p> <p>In a criminal prosecution, the defendant cannot prove particidar acts of his good conduct, neither can the state prove particular acts of his bad conduct, but proof of general character is alone admissible.</p>

<p>A scire facias against administrators of a judgment-defendant, alleging waste, must aver that there were not goods of the estate of the intestate in their hands sufficient to pay the judgment.</p>

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

<p>Proceedings in the Probate Court ordering an adminii estate of tbe intestate, to pay tlie debts of the estate^ ficient personal estate from which to liquidate them, ci collaterally.</p>

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

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

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

<p>Indictment as follows: "The grand jurors,” <&c., “upon their oatli, present that John Crawford, on,” (fee., “did then and there usuriously demand and receive of,” &c., “ a greater rate of interest than 6 per cent, per annum, to-wit, 8 per cent, per annum, on the sum of,” <fec.; and then charges that the defendant “ did then and there unlawfully and usuriously demand and receive of,” &c., “the usurious sum of,” &c. The defendant objected to the indictment, that it did not aver that the illegal interest was corruptly taken. Held, that the objection is not valid; and that the criminal intent is clearly expressed in the word usuriously.</p>

<p>A judgment was rendered in favor of A. against B. and C. in June, 1840. D. recovered a judgment before a justice against the same defendants in March, 1840, upon which execution issued and returned nulla bona. He caused a transcript of the judgment to be filed and recorded in the Circuit Court in April, 1840. Scire facias issued and judgment awarded in October, 1840. E. recovered a judgment in September, 1840, against B., F., G., and H. The judgment was rendered for a debt in which B. was principal, and the others his sureties ; and, to save them from loss, he mortgaged to them certain lands in February, 1840. Executions on all these judgments came to the hands of the sheriff, and he levied on the lands mortgaged and sold them to J., and applied the money — 1st. To the payment of A.’s judgment, which he satisfied in full; 2d. To the judgment in favor of E. ; and, there not being enough money to satisfy that judgment in full, he applied none to the judgment in favor of D. D. was present at the sheriff’s sale, and knew that B.,F., G., and II., had directed the sheriff to levy on the lands to satisfy the execution in favor of E. D. sued the sheriff; and the Court below decided that D.’s judgment was entitled to preference. Held, that there was no error in this judgment; that the sheriff was only authorized to sell the interest of the execution-defendants in the lands, and it was his duty to apply the proceeds according to the priority of the liens of the judgments.</p>

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

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

<p>The inducement to a plea of special traverse must be, in substance, a sufficient answer to the declaration, though not a direct denial, nor yet a confession and avoidance; and the traverse with which it concludes must go to a material point which will try the merits of the cause.</p> <p>The only way of answering a good special traverse is to join issue upon it.</p> <p>The vacation-appointment of an administrator by the cleric must be confirmed by an order of the Court at its next succeeding term, or the appointment will then cease to be of effect.</p> <p>A bond cannot be delivered as an escrow to the obligee.</p>

This was an indictment against the plaintiff in error for stealing “ a bank note of the State Bank of Ohio for the payment of 10 dollars.” The indictment concluded against the form of the statute. A motion was made to quash the indictment on two grounds. 1st. That the bank note was not described with sufficient particularity; 2d. That the indictment should have concluded against the form of the statutes.

<p>Indictment for murder. The defendant was put on his trial two days after the finding of the indictment. He moved for a continuance on his affidavit filed, which recited that he was informed and believed that a witness would be produced to prove that the defendant made certain admissions of his guilt. The affidavit further stated that the admissions made were induced both by raising his hopes and exciting his fears, if he should or should not confess; that he expected to prove by TV., who was present when the admissions were made, that, to induce him to confess, witness told defendant that unless he confessed he would, in half an hour, be tried and hung; but if he did confess, it would be better for him, and he might be cleared; that he could prove these facts by no other person; that the witness denied having held out the inducements; that the admissions were the first made, and would not have been made but for such inducements ; that TV. had been subpoenaed, but was unable to attend on account of illness, and that his attendance could be procured at the next term; that the affidavit was not made for delay, &c. The motion was overruled. Held, that the continuance should have been granted.</p>

<p>A sheriff in making sale upon execution is not obliged to take the bid of an irresponsible person.</p> <p>Held, that, to render a sheriff’s sale void, on account of the property being sold to a person who was not the highest bidder, (a person unknown, having bid 10 dollars higher than the purchaser,) it was necessary to prove that the sheriff acted fraudulently, and the person offering to bid higher was responsible.</p>

<p>A private action will not lie against a supervisor for damages sustained from his neglect to keep the roads and bridges in his district in repair.</p>

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

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

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

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

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

<p>The statute of 1843 authorizes a party interested in an estate to institute a suit in equity against the administrator for ovaste or mal-administration.</p>

<p>An action on the case lies for an injury occasioned by the obstructing of any public highway.</p> <p>The White Water Valley Canal Company are bound to build bridges and keep them in repair where the canal crosses highways.</p> <p>In case of a suit being brought for the failure of the company so' to build, the declaration must aver that a reasonable time had elapsed before the plaintiffs had performed the labor.</p> <p>In an action against two defendants, the declaration contained a good cause of action against one of them. Demurrer sustained to the whole declaration. I-Ield, that it should not hayo been sustained.</p>

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

<p>By the statutes of 1838 the bail was not liable to an execution without a scire facias.</p> <p>Scire facias. The suit was founded on an entry made in 1842 as bail for the stay of execution. The scire facias stated that execution issued in June, 1843, and was returned in July, of the same year, no property found. The defendant objected that the scire facias did not show that the debt could not have been collected under the execution which issued against the principal. Held, that the objection was well founded and fatal to the scire facias.</p>

<p>By tlie statutes of 1843, the defendant’s possession of the premises, or the part he defends, must he admitted.</p> <p>Ejectment, commenced in 1848. The plaintiff introduced a general warranty deed to himself, from Watton, made in 1843, and it was admitted that the grantor was in possession at the time of making the deed. Held, that Watton’s deed, and his possession at the time it was executed, were sufficient evidence, prima facie, of the lessor’s title.</p>

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

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

<p>Assumpsit. The first count alleges that A. gave liis note to the defendant in 1835, payable in a year from the January following; that, in July, 1836, he assigned it to the plaintiff, and he assigned it, in the October following, to B.; that in June the administratrix married; that in 1838, B. obtained a judgment against her and her-husband ; that in 1839, a ji. fa. issued and returned no goods found; and that the estate of A., at the time of his death, was notoriously insolvent, &c. Held, that the count did not show duo diligence.</p> <p>The third count alleges that A., when he gave the note, executed a mortgage on real estate to secure the payment thereof; that the mortgage was assigned with the note; that, in 1837, B. obtained a decree for the sale of the mortgaged premises; that the premises were sold in 1837 for 1,036 dollars, which was applied to the mortgage-debt; that, in 1838, B. sued the administrators for the balance due and obtained judgment for 686 dollars ; that, afterwards, ho sued the latter for waste and recovered judgment for 372 dollars, which last judgment was secured; that the administrators fully administered; that there was no property to make the residue of the first jrtdgment; and that he was compelled to pay the balance of the note to the plaintiff and take it back, &e. Held, that this count does not show a case of due diligence. Held, also, that unless the plaintiff sustained his allegation of insolvency by showing that the maker left no property at all, except the mortgaged premises, which the law could reach for any debt, he could not recover.</p>

<p>Bill in chancery praying that the Court decree the sale of the defendant’s equitable interest in certain land for the payment of the complainant’s debts, &c. The bill recited that “the said Charles L. Wilson is possessed of equitable estate of one undivided half of a certain tract or lot of land, situate,” &o., (describing the half lot). Held, that the description of the defendant’s estate was too loose and defective; and, on that ground, the bill was bad on demurrer.</p>

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

<p>Assumpsit on a promissory note made in Ohio and assigned by the payees to the plaintiff. The declaration set out a statute of Ohio relative to assignments. The defendants pleaded in abatement, that before they had notice of the assignment, and before suit was commenced, E. commenced a suit of foreign attachment against the payees for a debt due by them to him ; that he filed his affidavit that B., one of the defendants, was indebted to said payees, upon which summons issued and was served on him to appear as garnishee; that said summons was served before he had notice of the assignment of the note, and before t.e commencement of the present suit; that the writ of attachment was still pending; and that the debt for which the attachment issued was for the same debt now sued- for. Demurrer sustained and judgment for the plaintiff Held, that the pending suit pleaded was a suit inter partes and not in rem, and could only affect the parties in it and their privies.</p> <p>Held, also, that the plea should have shown that the debt due by the note was subject to the attachment-suit.</p> <p>Held, also, that the commencement of the assignee’s suit was notice to the defendants of the assignment, and the notice was in time to have enabled the defendant to defeat the attachment.</p> <p>Held, also, that the Ohio statute must govern this case.</p> <p>Queere, whether the pendency of an attachment-suit can, in any case, be pleaded.</p> <p>The fact that the plaintiffs in the two suits are different, is ¡prima facie, an ■ objection to a plea of the pendency of a suit previously commenced for the same cause.</p> <p>Where an obligor, summoned in an attachment-suit as garnishee, answers that the obligation was assigned before he was summoned, the attachment-plaintiff cannot reply that the garnishee had no notice of the assignment until after he was summoned.</p> <p>In a suit by the plaintiff as assignee of a firm on a promissory note against the maker, the declaration need not state the names of the persons composing the firm.</p>

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

<p>A fraudulent conveyance is valid, as to tlie grantee, against tlio grantor and his lieirs.</p>

<p>Petition by II. and wife against B. and the heirs at law of A. for dower, on behalf of the wife, who is alleged to have married H. since the death of A. The petition alleged that A. died in 1843, seized of certain land described; that B. had an interest in one of the tracts of the land; that, in 1843, the plaintiffs made a demand for said dower, which was refused. The petition claimed damages for the withholding of the dower. B. pleaded that he purchased 60 acres of said land from A. before his marriage with the female plaintiff; that he paid the purchase money to A. and his administrator; that he commenced a suit in chancery against said female defendant and the heirs of A., and that he obtained a decree vesting the title to said 60 acres in him, and that a commissioner appointed executed a conveyance to him, said commissioner having reported the same to the Court. He further alleged that the said female plaintiff was perpetually enjoined from interrupting him in the enjoyment of said 60 acres. Demurrer to the plea sustained. Some of the defendants pleaded that the marriage of A. to the female plaintiff was null and void, she being his niece by affinity. Demurrer sustained to this plea.</p> <p>The infants, by their guardians ad litan, pleaded that, as to the matters contained in the petition, they neither admitted nor denied the same. Another plea was filed alleging, in general terms, that the female plaintiff was not at anytime A.’s lawful wife. Judgment was rendered against all the defendants for the dower claimed, and against the heirs for damages.</p> <p>Held, that the Court erred in sustaining th'e demurrer to B.’s plea; and that the demurrer to the plea, alleging the marriage void, was correctly sustained.</p> <p>Held, also, that the plea of the infants, by their guardians ad litan, could not benefit them, the petition being a proceeding in law'and not in chancery. Held, also, that the judgment for damages was too large.</p> <p>Held, also, that the plea averring generally that the marriage was unlawful, by traversing no other material allegation, admitted all the material allegations in the petition except the one traversed.</p> <p>Where evidence is objected to, the record must show that the cause of objection was pointed out at the time, or the evidence will be considered as not having been objected to.</p>

<p>Bill in chancery against an executrix to obtain payment of certain accounts against a decedent. The defendant was a non-resident. Publication of the pendency of the suit was made, and afterwards proved. The bill was taken as confessed, and final decree, without proof, rendered for the complainants. Held, that the decree was erroneous.</p>

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

<p>A deputy sheriff is liable to an indictment for a neglect of duty.</p>

<p>Ejectment. The defendant offered in evidence a transcript of a record of a partition suit, which ^was objected to. The transcript showed two affidavits of the editor of the newspaper in which notice was published, the first stating that publication was made three weeks', and the second, that it was made five weeks. The second affidavit was not copied into the record for several years afterwards, and was inserted into the record by order of the Court, nunc pro tunc, to correct an alleged mistake in the first affidavit as to the time the notice had been published. The transcript showed that there was an appearance on the part of the defendants to the partition suit. One of the defendants was an infant and first appeared by attorney, and the transcript shows that he had a guardian. Held, that the objection was correctly overruled, and that the ajjpearance of the infant by attorney was not objectionable.</p>

<p>If an administrator commit waste, his sureties are liable, under the statute of 1843, to a suit in chancery by the person interested.</p>

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

<p>ERROR to the St. Joseph Circuit Court.</p>

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

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

<p>R. recovered a judgment before S., a justice, against A. R. was indebted to S., and told the latter to take the first money collected on the judgment and apply it on his debt. Afterwards, R. died intestate. The administrator of R. demanded of S. the money collected on the judgment, who refused to pay it over, but applied it on his debt. Held, that the authority of S. to so apply the money ceased on the death of R., and the money, being collected after R.’s death, belonged to his administrator.</p>

<p>Tlie administrator filed in the clerk’s office of the Warren Circuit Court a transcript of the proceedings in a suit in the Probate Court of that county, in which he was defendant and S. plaintiff. The transcript showed that two promissory notes, executed by the intestate and payable to S., were filed as the cause of action; that the cause was continued; that the administrator filed pleas which led to issues of fact; that the parties submitted the cause and judgment was rendered in favor of S. Appeal to the Circuit Court. S. moved for a dismissal of the appeal because there was no assignment of errors. Held, that had the notes been filed in a case where the administrator had petitioned to settle the estate as insolvent, and tire Probate Court had determined that the ■ estate was insolvent, the trial of the appeal would have been on its merits; but that this case was before the Circuit Court as a Court of error, and this Court had no jurisdiction of the case.</p>

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

<p>Debt before a justice, and appeal to the Circuit Court. The record states that the parties appeared, and “ the issues being joined,” the jury found for the plaintiffs. It was objected that there was a trial without an issue. Held, that the case was to be considered as originating before a justice, and, therefore, the omission to file a forma^replication was not sufficient ground to reverse the judgment.</p>

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

<p>To sustain an action of replevin it is necessary for the plaintiff to prove either an unlawful tailing or an unlawful detainer.</p>

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

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

<p>When a divorce lias been granted on account of the misconduct parties, the wife cannot afterwards claim dower in the husband under the B. S. 1843, s. 57, p. 604.</p>

<p>Declaration in debt as follows: For that 'whereas the said plaintiff heretofore, to-wit, on, &c., at, &c., in the state of Ohio, before J. B., who was then and is now an acting justice of the peace, and who, by virtue of the statute of the state of Ohio, was duly elected, commissioned, and qualified, and possessed jurisdiction in all civil cases in, «fee., where the matter in dispute did not exceed 100 dollars, and to whose official acts full faith and credit are due and ought to be given throughout the United States and elsewhere, at a Court then and there holden by said justice of the peace, by virtue of the statute aforesaid, by the consideration and judgment of, &c. Held, that the allegation, as to the statute, was good on general demurrer. Held, also, that if it had been traversed, the plaintiff would have been obliged to prove that there was such a statute.</p>

<p>If a judgment be reversed, the party will be restored to all that he has lost by occasion of the judgment, and a writ of restitution will^be awarded.</p> <p>Where the plaintiff has execution, and the money is levied and paid, and that judgment is afterwards reversed, the party shall have restitution without a scire facias, because the record will show that the money is paid, and there is a certainty of what is lost; otherwise, where it was levied and not paid, for then there must be a scire facias suggesting the sum levied.</p> <p>In cases where a writ of restitution can issue at once, a demand is not required before commencing the suit.</p> <p>An action for money had and received is the proper remedy in these cases.</p>

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

<p>Debt oil a judgment rendered in New Jersey. The defendant pleaded, in his second plea, that one M. had fraudulently appeared and confessed the action without any authority from him so to do, and that he had never had any notice of the pendency of said action. The third plea states that the defendant did not appear, either in person or by attorney, and defend the suit; that no process was ever served upon him; and that, at the time of the trial and issuing of the process, he resided, and still resides, in Indiana. The evidence shows that the defendant and W. had been partners in New Jersey; that they dissolved, and the former removed to this state, and, after his removal, the suit was instituted in New Jersey, and judgment obtained. The process in that suit was returned not found as to the defendant; that M. was employed by W. without defendant’s knowledge, and that he confessed judgment without the directions of either of them. There is no evidence that the defendant had any knowledge or notice of the suit. Held, that the suit against the defendant on said judgment was not sustainable. .</p> <p>A judgment debtor may show, to avoid the effect of the judgment, that the attorney who had entered an appearance for him, had no authcrity so to do.</p>

<p>Demurrer was sustained to a plea in. abatement, wMcb. was as follows: That tlie writ described the plaintiffs as Wm. S. T. Morton and Laz. Nolle, and not William S. T. Morton and Lazarus Noble, as stated in the declaration. Held, that the demurrer was rightly sustained, if for no reason than that oyer of the writ was not obtained.</p> <p>Quare, whether, if oyer of the writ had been obtained, the variances mentioned in the plea would have been considered material.</p>

<p>The mere fact that the defendants are partners in the practice of medicine, does not render them jointly liable for the expenditures of each other having no connection with their partnership business as physicians.</p>

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

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

<p>A recognizance cannot be impeached collaterally for the want of capacity occasioned by drunkenness of the person by whom it was acknowledged.</p> <p>An execution issued after the year without revival, cannot, upon that ground alone, be avoided in a collateral suit, by one who was not a party to it.</p> <p>On a judgment against several joint defendants, an execution may issue without an affidavit indorsed thereon, that the defendants have not sufficient property in the county in which they reside to satisfy said judgment, to any county in which any one of the defendants may reside. Doe ex. dem. Cooper v. Harter, 1 Garter’s Ind. R. 427.</p> <p>The term “irregular process” is usually applied to all process not issued in strict conformity with the law, whether the defects appear upon the face of the process, or by reference to extrinsic facts, and whether such defects render the process absolutely void or only voidable.</p> <p>A sale under process, absolutely void from defects apparent upon the face of the writ, can convey no title to any purchaser; where it is merely erroneous and voidable, the defects which render it so can only be taken advantage of in direct proceedings for the purpose of having the errors corrected; and, unless reversed or set aside by the Court from which it issued, such process will be deemed valid for all purposes as regards strangers, and in collateral actions.</p> <p>The distinction between a purchaser with and without notice, cannot be applied to all cases of sales under executions called irregular.</p> <p>Recognizance of bail as follows: “Now, at this time, to-wit, &c., (stating the date,)comes into open Court, A. and B. and acknowledge themselves replevin-bail and security for the judgment and costs heretofore rendered in the above entitled cause,” <fce. It was urged that the entry was void, because it was not subscribed by the persons entering bail. Held, that the statute did not require the parties to subscribe the entry.</p>

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

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

<p>Debt on a bond payable to the state for the use of township schools in Posey county, and conditioned for the faithful discharge of the obligor’s duties as school commissioner of said county. Cause was continued from term to term, when an amended declaration was filed. The defendants moved to have the original writ read, which was refused. They then moved to reject the amended declaration, which motion was overruled. Defendants made default, and interlocutory judgment for the plaintiff. Held, that the bond was given under the statute of 1838, and correctly made payable to the state. Held, also, that its being given for the use of township schools, instead of fiqx- the use of congressional townships within the county, was not a material mistake. Held, also, that the motion to reject the amended declaration was properly overruled. Held, also, that no cause appealing for the refusal to have the writ read, this Court will presume that the refusal was correct.</p> <p>Held, that on inquiry as to the amount of damages after judgment for the plaintiff by default, the jury could not, no matter what Hie proof was, find for the defendants.</p> <p>Held, that the fact that the plaintiff had recovered judgment on another bond against other persons, for the same cause of action, was no bar to the suit.</p>

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

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

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

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

<p>The act of 1849, giving exclusive jurisdiction to justices in certain cases, contained no clause saving pending suits, and the Circuit Courts, after the passage of that act, had no jurisdiction of such causes.</p>

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

<p>Service of a writ by leaving it at the defendant’s place of residence, is authorized by the R. S. p. 674, s. 23; and the fact that the defendant was absent in another state and was not actually notified of the suit until the first day of the tern at which the summons was returnable, affords no reason for setting aside the return.</p>

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

<p>The act of congress of March 26, 1804, entitled “ an act making provision for tke disposal of the public lands in the Indiana territory, and for other purposes,” conferred no rights on the trustees of the -Vincennes University to the township of land, reserved by that act for the use of a seminary of learning, and which was subsequently located in Gilson couniy. They were not then in existence as a corporation.</p> <p>It was the intention of congress, in reserving these lands, to afterwards appropriate them to the use of such seminary as it should designate.</p> <p>The act of the territorial legislature of 1806, granting the use of said lands to said university, was nugatory, as no such power was conferred on the legislature by congress.</p> <p>Congress, in 1816, granted said township, and one additional township, to the state.</p>

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

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

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

<p>Covenant. The defendant agreed to huild for the plaintiffs, at specified places, the superstructure of certain bridges, at certain prices. The work was to be completed by the 1st of August, 1846. The abutments for said bridges were to be built by the plaintiffs. The declaration contains an averment of performance of plaintiffs’ part. Breach, that the defendant did not, by the time agreed upon, build said superstructures, or any part thereof, &c. The defendant pleaded in bar that the plaintiffs did not, before the 1st of August, 1846, nor for nine months thereafter, although often requested so to do, &c., have said abutments puf; up, &c. Averment, that, in consequence of the plaintiffs’ failure, the defendant was prevented from complying with his part of the contract as he desired to do and was always ready to do, <fcc. Demurrer to the plea overruled, and final judgment for the defendant. Held, that the plea was not double, and the demurrer was properly overruled.</p>

<p>Suit on a note for 20 dollars, payable in scrip or plows in sixty days, for value received. The defendant pleaded that at the time of making said note, the parties resided in Lafayette and continued so to reside up to the commencement of the suit; that the defendant was a manufacturer of plows and kept a shop in Lafayette for that purpose; that on the day the note became due he was ready to pay the plaintiff the amount in plows of a good quality at his shop, according to the terms and meaning of the note; that the plaintiff did not attend at any time during said day to receive them; and that he has ever since been ready, and still is ready, to deliver said plows, &c., to the plaintiff on demand, &c. General demurrer to the plea sustained. Held, that the plea was bad.</p>

<p>The admissions of one partner, made at the time of the payment to hiin of a debt due to the partners, and at a time subsequently to a dissolution, are admissible against the other partners, as tbo admissions of an agent relative to an act within the scope of his authority, made at the time when such act was done, are admissible in evidence to bind his principal.</p> <p>An agent who has only authority to receive payment of a debt, cannot bind his principal by any arrangement short of an actual collection of the money.</p> <p>The receipt of property is not in itself a payment of a debt, and can only become so by an agreement to receive such property as payment. Such an agreement is a new contract, and will not be binding on the firm, if made by a former partner after the dissolution, without the assent of his co-partners.</p> <p>An acknowledgment of a debt made by one partner after a dissolution of the partnership is not sufficient to take a case out of the statute of limitations as to the other partners.</p>

<p>An agent is not liable to a suit for money collected for liis principal, unless it have been previously demanded.</p>

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

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

<p>The general internal improvement act of 1836 is in force so far as it is unchanged by subsequent legislation; and, by that act, claims for damages to lands by the construction of public improvements, must be made in two years after the appropriation of the land or damage done, and not afterwards.</p>

<p>Mandamus issued on the application of L. against the trustees of school district, No. 6, áse., to show cause why they did not prevent “ colored children, commonly called Negroes,” from attending the public school taught in said district. L. was a white inhabitant and tax-payer of the district. Held, that the application for the writ should have stated that certain negro children were in attendance upon the public school at the time of the application; that the trustees had been notified of the fact and required to remove said children, or cause them to be removed; and that they refused to do it.</p> <p>Held, that the remedy by mandamus in such a case is probably appropriate.</p> <p>A mandamus issues from the Circuit Court to a person or persons exercising an inferior authority, requiring the performance of a particular act which should be, but is refused to be, performed by such person or persons; and until such refusal is shown, the writ cannot be obtained.</p> <p>Colored children are not permitted to attend our public schools, paying their own tuition, where the resident parents of white children attending, or desiring to attend said schools, object.</p>

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

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

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

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

<p>Assumpsit by the administrator of A. against B. The following facts were proved: C. mortgaged to B. a tract of land to secure the latter as indorser upon a note for 2,500 dollars, and also to secure a debt of 1,600 dollai-s which the former owed the latter. The note was indorsed by B., A. , and D. Subsequently C. mortgaged to these three persons personal property to secure them as such indorsers. E. toot out an execution against C. on a judgment older than the mortgage to B. The agent of B. called upon A. and J). and it was agreed that they should contribute a sum sufficient to pay off the judgment of E., and thus preserve the mortgaged premises. A. advanced 377 dollars and D. 100 dollar's. B. offered to prove that he advanced 84 dollars, which was objected to and objection sustained. A. received the obligation of B., by which the latter promised that if he should hold the mortgaged property, the proceeds thereof, either from rents or sale, should first be applied to refunding the sum so advanced. B. realized 1,918 dollars from the sale of the personal property, which fell short of the necessary amount to take up the note 471 dollar's, which he advanced and paid off the note. Subsequently B. had the mortgage on the land foreclosed, a decree rendered in his favor for 2,970 dollars, and became the purchaser of the land for 1,250 dollars. Verdict for the plaintiff and judgment for 395 dollars. Held, that if the mortgage was intended for the benefit of all the indorsers, it did not follow that B. did not become a purchaser at the sale on his individual account.</p> <p>Held, also, that the sum advanced by A. to pay off the judgment of E. must be regarded as a loan to B.</p> <p>It was contended, that B. had a right to apply the purchase-money due by him to his individual debts. Held, that, as a general rule, if the debtor does not direct the application, the creditor may, but it is too late for either party to claim the right to make such application after the controversy has arisen.</p> <p>If neither party, before a trial in which the question is involved, have made the application, or manifested any intention to do so, it devolves upon the law or the Court to make it; and in the case of the proceeds of judicial sales the rule appeal's to be that they will be applied pro rata to the debts for which the sales are made.</p>

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

<p>Ejectment. The right of the plaintiff’s lessor to the land was based on sheriff’s sale and deed. In 1846, a judgment was obtained on a note dated in 1845, before a justice. The judgment was in the usual form; nothing being expressed that property should be sold without valúa1 tion. Upon a transcript, an execution was obtained upon scire facias, but did not provide that collection should be made without relief from valuation. The sheriff sold the land on this judgment for what it would bring, arid without appraisement. The plaintiff offered in evidence, on the trial of this ejectment suit; the note on which judgment was rendered, to show that it was executed after the 1st of June, 1843, and stipulated for a waiver of valuation and appraisement laws; which the Court refused. Held, that the sale was void, arid the evidence rightly refused.</p>

<p>APPEAL from the Wayne Pr'obate Court,</p>

<p>The plaintiff contracted, to make a road for the defendant, of a particular description, up a certain hill, for 25 dollars, and be boarded by the defendant. Before making- the contract, the plaintiff examined the place where the labor was to be done, and was told that if he undertook to dig the road for said sum he would be sorry for it; and at the time of making the contract, the defendant told plaintiff if he could not dig the road for 25 dollars not to touch it. The plaintiff performed about one-half of the work, but no part of the road was finished according to contract. The cost of the work done was about 50 dollars. The defendant asked for the following instruction: “ If the jury find, from the evidence, that the plaintiff contracted to perform a certain job of work, in making a road for a stipulated price, and that the plaintiff did not complete said job, but, without cause, abandoned the same before it was completed according to contract, without defendant’s consent, and that it would cost more to complete said job, according to contract, than the original contract price, the plaintiff cannot recover for the work so done by him.” The Court refused to give this instruction. Held, that the instruction should have been given.</p>

<p>The widow of any decedent may take property or money to the amount of 150 dollars, immediately after the appraisement or sale, without reference to the debts or expenses of the administration; and, when so taken, may be considered as so much deducted from the assets in the hands of the administrator. It constitutes no portion of the surplus remaining after payment of debts, and to which the act relative to distribution has reference.</p>

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

<p>The plaintiff sold the defendant a flat-boat; at the time of sale it was sunk so that neither party could know in what condition it -was as regarded navigation. The price paid was less than half that which was usually paid for first rate boats of equal size. The defendant carried a half load on said boat to the place of destination safely. Held, that this was not within any of the classes of cases in which the law raised an implied warranty that the article sold was fit for the purposes for which it was purchased.</p>

<p>The defendants, who were non-residents and common carriers, agreed to deliver a certain amount of flour for the plaintiffs at New York in good order for a certain amount agreed on as freight. Held, that the property of the defendants was liable by suit instituted by process of foreign attachment, for the damages done to the goods while on their transit.</p>

<p>In the sale of a chattel not in the possession of the seller, there is not an implied warranty.</p> <p>The simple fact that a person is a seller of property not in his possession at the time of sale, does not disqualify him as a witness for the purchaser.</p>

<p>The malicious killing of a dog is an indictable offence under our statute on the subject of malicious mischief.</p>

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

<p>Trespass guare clausum fregit. The defendant pleaded that the plaintiff had granted to S., for a valuable consideration, the quiet possession of a certain ten acre lot of ground for his, S.’s, life, which lot was part of the plaintiff’s farm and which is described in the declaration ; that S. was permitted, by the contract, to take from the orchard on said farm all the fruit he should desire for Ms own use, and had the privilege of taking sufficient fire-wood from said premises for Ms own use; that £>. had leased said lot to the defendant with his rights, privileges, and appurtenances thereunto belonging; that the defendant, by virtue of said lease, entered the plaintiff’s close, out of the bounds of the said lot, and took the apples and fire-wood mentioned in the declaration. Held, that the plea was bad; that the agreement was a personal one and did not pass to the defendant under his lease.</p>

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

<p>APPEAL from the Harrison Probate Court.</p>

<p>A bill of exchange was drawn on a firm, and was accepted by one of the partners in the name of the firm. The bill included an individual debt Sue by the one accepting, and also a debt due by the firm. The other, and then only surviving member, pleaded the general issue under oath. Held, that the drawers could recover on the bill the amount of the firm-debt included in it.</p> <p>If the drawers could have shown previous authority to the partner to accept the bill, or a subsequent approbation of the act, they could have recovered the whole amount.</p> <p>A partial want or failure of consideration avoids a bill of exchange only pro tanto; but where the consideration is illegal in part, then it avoids the bill in toto.</p>

<p>To give a magistrate jurisdiction under the act of the legislature, approved February 19, 1838, (R. S. 1843,) relative to fugitives from justice, it should be shown that the person sought to be arrested has left the state in which he committed the crime for the purpose of escaping punishment for it.</p> <p>The above act is unconstitutional.</p> <p>The case of Graves et al. v. The, State, 1 Carter’s Ind. R. 368, confirmed.</p>

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

<p>Trial of right of property. The plaintiff gave in evidence three executions in his favor, and which were all levied on the property. On the first and third the law did not require an appraisement of property before sale, but on the second it did. The sale was nominally made on all the executions without appraisement, and the plaintiff became the purchaser, but at a price not sufficient to pay the first execution upon which the amount bid was paid. The plaintiff left the property in the possession of the execution-defendant. A young colt was sold at the said sale with the mare, (a part of the property), at the execution-defendant's request, but no return of that fact was made by the constable.</p> <p>Held, that the sale to plaintiff was valid.</p>

<p>In an action for breach of marriage promise, it is not necessary to aver a request to marry, on the part of the plaintiff, where the declaration avers that the defendant had married another.</p> <p>On the trial in this case, the defendant gave evidence of the bad characters of two of the plaintiff’s witnesses. Held, that the plaintiff might be permitted, in her rebutting evidence as to the characters of said witnesses, to prove that they were good before this suit was commenced.</p> <p>The plaintiff will be permitted to prove her conduct and apparent distress on hearing of the marriage of the defendant to another; and declarations made by her to members of her family while she was receiving the plain-visits, and before any estrangement, will be admitted, all to show a promise of marriage on her part.</p> <p>To sustain this action, there must be a mutual promise of marriage between the parties.</p> <p>The plaintiff will be permitted to prove seduction to enhance the damages.</p>

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

<p>ERROR to the St. Joseph Circuit Court.</p>

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

<p>An action for money bad and received will lie where one man has obtained money from another through the medium of oppression, imposition, extortion, or deceit; and the law implies a promise from such person to return it to the lawful owner whose title to it cannot be annulled by the fraudulent and unjust dispossession.</p> <p>Such action will lie where money has been received by mistake of facts, or without consideration, or upon a consideration that has failed, or where money has been received under a special contract that has been rescinded.</p> <p>The defendants sold to the plaintiff several bills of exchange drawn on a broker in New York. The bills were accepted, but the sale was made by fraudulent representation, and both the defendants and broker were destitute of property. Suit was brought a few days before the bills were payable. Held, that as the money sued for had been obtained by fraud, the plaintiff had a right to consider the contract a nullity.</p>

<p>The complainant filed Ms bill praying a specific performance of the contract entered into between him and the defendant, by which the latter bound himself to execute to the former a deed for certain land at a certain time, provided he obtained a title thereto himself, or give the complainant a title-bond. The Court decreed that the defendant execute and deliver a good and sufficient deed to the complainant, within sixty days, &c. Held, that the decree was erroneous as the bill expressly alleged that the defendant had not the legal title to the land he contracted to sell.</p>

<p>When a factor receives goods for sale on commission, he undertakes to account for those he may sell, and pay over the proceeds and to re-deliver the residue on demand.</p> <p>If he make a wrong use of the goods he may be sued in special assumpsit on his promise to perform his duty, or in case for his non-performance of that duty.</p> <p>Ylf there has been a tortious conversion of the goods, or a refusal to deliver L them on demand, when they might have been delivered, trover will lie. factor will not be liable to a suit for goods sold and delivered in consequence merely of an unauthorized disposition of the goods.</p> <p>A suit on contract cannot be sustained by proof of a different contract from that described in the declaration.</p> <p>In a suit for goods sold and delivered, evidence that the defendant received the goods to sell, as the plaintiff’s agent, and had sold them and received the price is inadmissible.</p>

<p>The commissioners of Randolph county made an order directing the county agent to lay off a certain portion of the public ground belonging to said county, in the town of Winchester, into lots, and advertise and sell them to the highest bidders. The plaintiff and others remonstrated, alleging they were the owners of lots adjacent to said ground; that they had purchased said lots with the expectation of enjoying the free use of said ground as a commons for which it was intended; and that the right to the use thereof was an incorporeal hereditament, &c. The Court refused to rescind the order of sale. The land on which the town is situated was deeded to the county agent for the use of the county. The original town plat was lost, but the county agent who had held that appointment since the organization of the county, testified that he never was directed to lay off said ground as a public commons, and it was not done on the original plat, which was lost. The ground was never used for any other purposes than other uninclosed ground belonging to individuals. Held, that the ground had not been dedicated for common use.</p>

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

<p>The law provides that the treasurer of Madison county shall he elected for three years and until his successor is elected and qualified.</p>

<p>An adjourned term of the Randolph Circuit Court was held within three months from the time fixed for the regular term ; at the adjourned term the defendant was indicted. No objection was made below to the regularity of the proceedings. Held, that it will be presumed that the adjournment was according to law.</p> <p>It is admissible to prove that after the defendant was arrested upon a charge of the alleged crime, he left the country and forfeited his recognizance.</p> <p>The separation of witnesses is not a matter of right but of favor; and when the order separating them is disobeyed, it is still in the discretion of the Court to permit the examination of the disobedient witnesses.</p> <p>While the Court was in session, one of the jurors left the box, passed through the group of spectators standing about, and after a moment’s stay returned to the box again. Held, that these facts furnished no ground for a new trial.</p> <p>As a general rule, new trials are not granted for the impeachment of witnesses or the admission of cumulative testimony.</p>

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

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

<p>Where two or more purchase an estate, and one pays the money, and the estate is conveyed to them both, the one who pays the money gains neither a lien nor a mortgage, because there is no contract for either; nor can it be construed as a resulting trust, as such a trust cannot arise at an after period. The only remedy he has is to file a bill for contribution.</p> <p>A purchaser with notice may protect himself by purchasing the title' of another bona fide purchaser for a valuable consideration without notice. If a person who has notice sells to another who has no notice, and is a bona fide purchaser, for a valuable consideration, the latter may protect his title, although it was affected with the equity arising from notice in the hands of the person from whom he derived it.</p> <p>As a general rule, inadequacy of consideration alone is not sufficient cause for impeaching a contract.</p> <p>Where an instrument has been recorded, the recording of which was not required by statute, the record is no legal notice of its contents.</p>

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

<p>APPEAL from the Jackson Probate Court.</p>

<p>A. sold a tract of land to B. The latter paid a portion of the purchase-money, gave his note for the balance, and took a bond conditioned that a deed should be made when all the purchase-money was paid. B. took possession, and died leaving heirs. The purchase-money being unpaid, A. filed his bill to enforce payment by a sale of the land; a decree was rendered and the land sold to C. A. married prior to the said sale to C., and died. Held, that his widow was not entitled to dower in said land. .</p>

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

<p>Where representations of character, &c., are made which are false, and are fraudulently made with the intention to deceive and defraud the person to whom they are made, and he thereby suffers, the party making such representations will be liable.</p> <p>But if the party making such representations, at the time they were made, had some information as to the matters stated, and from the information he had received, he believed such statements to be true, and they were made without any fraudulent intention to deceive the plaintiff, he will not be entitled to a verdict.</p>

<p>It is a general rule that a purchaser at sheriff’s sale is bound only to show the judgment of a competent Court, an execution warranted by the judgment, and a sale and deed under it.</p> <p>The R. S. of 1824, provided that in all cases where an execution issued on a judgment of a justice, and sufficient personal property was not found, the justice should send a transcript of the judgment to the clerk’s office, where it should be filed; that a scire facias should issue; and that two returns thereto, of not found, should authorize the Court to proceed to judgment and execution against the lands as if personal service had been made.</p> <p>A transcript of a justice’s judgment was filed in the clerk’s office, and proceedings had thereon in accordance with the provisions of the R. S. of 1824. Held, that the judgment of the Circuit Court could not be impeached collaterally.</p>

<p>As a general rule, no bill of interpleader lies in belialf of a tenant against his landlord.</p> <p>In cases of tenants seeking relief by bills of interpleader, it must appear that the persons claiming the same rent, claim in privity of confa-act or tenure, as the case of mortgagor and mortgagee, or of trustee and cestui que trust, or where the estate is settled to the separate use of a married woman, of which the tenant has notice, and the husband has been in receipt of the rent. In such case the tenant puts himself on the mere uncertainty of tlie person to whom he is to pay rent, and affirms the title of his landlord.</p> <p>Threats to commit waste will authorize an injunction.</p>

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

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

<p>There lias been,-since February, 1840, a statute law of this state mating illegal the issue of small bills or notes, other than bank bills, intended to be used as a circulating medium.</p> <p>A contract, in which such illegal small bills or notes form the consideration, is illegal and void; and the collection of a debt resting wholly on such a consideration cannot be enforced.</p>

<p>Courts will give statutes a prospective operation wliere tliere is nothing' indicating a different intention on the part of the legislature.</p> <p>The legislature has power to enact retrospective limitation laws where they do not deprive parties of a reasonable time for prosecuting their claims before being barred.</p> <p>The statute of limitations of 1843 is retrospective in its operation.</p>

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

<p>The plaintiff took out a writ of foreign attachment against the property of the defendant. The latter gave bond, and his property was released, and at the succeeding term there was an order of publication. At the term subsequent, the administrator of the plaintiff’s estate appeared and suggested the death, since the last continuance, of the plaintiff, and it was ordered that the suit be revived in the name of the administrator. Publication was proved. At the next term the parties appeared, and the defendant failing and refusing to make any defence, judgment was rendered for the plaintiff with an award of execution. The transcript contains a statement of the clerk that the defendant moved to dismiss the cause for want of a scire facias, and that the motion was overruled. Held, that the statement of the clerk was no part of the record. Held, also, that as the defendant appeared to the suit and suffered judgment to be rendered against him without objecting to the order of revival, he may be considered as having waived the objection.</p>

<p>Betting on the result of an election is an indictable offence.</p> <p>All wagering contracts are void by statute.</p> <p>Sums of money stated in an indictment need not be proved as laid,'unless they form part of the description of a written instrument, or the exact sum be of the essence of the offence.</p> <p>In an indictment for winning a certain sum of money, the prosecutor may prove the winning of a smaller sum.</p> <p>A. sold a horse to the defendant for 65 dollars payable when General Taylor should be elected president of the United States, which sum the defendant subsequently paid. The horse was worth 50 dollars. Held, that the transaction was a wager.</p>

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

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

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

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

<p>Bill in chancery stating that the complainant was seized in fee of certain land; that the defendant had a life estate as a tenant in dower in a part of said premises ; that she had committed great waste by means whereof her estate had become forfeited; that she was not a resident of this State, <&c. The defendant prays that the lands be decreed forfeited and such other relief given as may be meet. Held, that the bill would have been bad on demurrer, and the objection might be taken at the hearing. Held, also, that the facts presented no ground for an injunction.</p> <p>Equity takes jurisdiction to restrain waste by injunction, and in some particular cases, to obtain a discovery and account, and having for these objects obtained jurisdiction of a cause, it proceeds to avoid multiplicity of suits to compensate for damages done. But the jurisdiction itself must rest, in the first instance, on the necessity for an injunction, or discovery and account.</p> <p>If the suit be simply to recover of a tenant in dower the possession of the premises wasted and damages, it should be case under the statute.</p> <p>An injunction will not ordinarily be granted under a prayer for general relief, but must be expressly prayed.</p> <p>Equity, as a general rule, does not enforce forfeitures.</p>

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

<p>The statute gives the clerk authority to grant letters of administration in vacation when the right to administration is not controverted.</p> <p>The Court is bound to ratify the clerk’s appointment, unless some valid objection be made against it.</p> <p>The clerk reported to the Ohio Probate Court that he had, in vacation, granted to A., B., and C., letters of administration, <fcc.; that said administrators had given bond, &c., according to law. The administrators then moved the Court to confirm said appointment and produced an account in favor of A., sworn to, amounting to 762 dollars. They also produced a written notice to the clerk signed by A., stating that she should claim the appointment of administratrix as the largest creditor, and that she desired B. and C. to be associated with her in the administration, which notice was filed by the clerk. D. objected to the confirmation of said report, and moved for the appointment of himself and E., and introduced a notice to the clerk stating that he was a creditor of the estate, and should, as soon as the law permitted, apply for letters. He also produced an account in his favor for 265 dollars, and one in favor of F. for 236 dollars. F. renounced any right he might have to the administration in favor of D. and E. The Court declared the clerk’s appointment void and appointed E. and L. Held, that these facts do not show that the right to administration was controverted before the clerk. Held, also, that A., being the largest creditor, was entitled to the administration. Held, also, that the clerk was authorized to join B. and G. with A. in the appointment.</p>

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

<p>The maxim, caveat emptor, is usually applied with strictness to the purchase of goods at execution sales. The sheriff does not warrant the title of the execution-defendant but sells whatever title or interest the latter may have, and if the buyer chooses to purchase a doubtful title to the property offered for sale, he cannot claim to be released from the payment of his bid upon the ground that the title was imperfect.</p>

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

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

<p>A verbal contract made at the time a promissory note is executed, varying the terms of the note, cannot be set up to defeat a suit on the note.</p> <p>One party to an executed contract cannot rescind it without restoring the other party to his original situation.</p>

<p>If, in an attachment against a boat, the boat be released by giving a bond as prescribed by statute, the judgment for the plaintiff should be against the debtor personally.</p> <p>Attachment against a boat. The master gave bond, appeared, and defended, and the justice erroneously rendered judgment against the boat, instead of against the master. Appeal to the Circuit Court. The attorney for the boat moved to dismiss the cause, which motion was overruled. He then offered to go to trial on behalf of the boat, but the Court tried the cause as between the plaintiff and the master and gave judgment against the latter. Held, that the cause should not have been dismissed, and the Court correctly rendered judgment against the master. If neither party, on appeal to the Circuit Court, require a jury, the cause may be tried without a jury, though the amount in controversy exceed 20 dollars,</p>

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

<p>The complainants filed their bill in chancery against the defendant, their brother, alleging that their mother died seized in fee of certain land; that she purchased said land with her own funds for her own use; that the defendant purchased the shares of all the heirs except those of the complainants, took possession of the whole property, has enjoyed the rents, and refuses to make partition and account for said rents. The defendant answered, admitting the possession and the purchase of the said shares, and states that his father died the owner of certain estate which 'descended to him and the other heirs subject to their mother’s dower; that the defendant purchased the shares of the complainants in said estate; that he and the remaining heirs and the widow sold said estate for 3,600 dollars; that it was then agreed between the widow and heirs that 1,200 dollars of said money should be laid out for lands for the use of said widow during her life, with reversion to said heirs uniting in the sale; that such investment was made in the lands of which the complainants are now seeking partition, and of which the defendant claims to be the sole owner. The proof sustained the facts contained in the answer. The deed made to the widow was in absolute fee. Held, that evidence could be offered to show that by fraud, accident, or mistake the deed to the widow was drawn covering a larger interest than was intended, or that the consideration paid for it was the money of other persons, and that the estate was-held in trust.</p> <p>Held, also, that the widow held the fee in trust for the heirs other than 'the complainants. They had no money invested in the property, having sold their interest in their father’s estate to the defendant</p>

<p>A person, through his agent, borrowed of the defendant 500 dollars, and gave his note for 550 dollars payable in one year. The defendant handed the agent 550 dollars, but immediately received the 50 dollars again from the agent as interest. Held, that the contract was usurious.</p>

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

<p>When a case is brought to the Circuit Court by a writ of certiorari, the Court should, reverse the judgment of the justice if erroneous, but retain the cause for a new trial as in cases of appeal</p> <p>It is not essential, in actions commenced before a justice by or against a firm, that the statement of the demand or cause of action should set out the names of the persons composing the firm, though it is necessary that 'such actions should be brought by or against the persons composing an unincorporated company in their individual names.</p>

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

<p>A tona fide purchaser at sheriff’s sale' Of land, which the judgment-debtor had conveyed away previously to the judgment against him, but the deed for which had not been put upon record within ninety days of its execution, nor prior to the recording of the sheriff’s deed, will hold the land.</p> <p>A purchaser at sheriff’s sale stands; in relation to the registration law,- as though he was a purchaser at the same date from the execution-defendant himself.</p> <p>All deeds conveying real estate in this state should he recorded within ninety days from their execution, be they executed wheresoever.</p>

<p>If a bank be organized under an úñconstitutional law, the notes issued by it will be void, and will constitute no consideration for a promissory note.</p> <p>If a bank be illegal on the ground that it was not chartered by the requisite constitutional vote, the journals of the legislature chartering the same will be legitimate evidence to show the fact.</p> <p>A Court of chancery will not relieve against a judgment contrary to equity where a defence existed which might have been set up at law, unless the failure to so set it up was unmixed with fault or negligence on the part of the defendant to such judgment.</p>

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

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

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

<p>The complainant filed a bill of discovery, alleging that he is sued by the defendant for failing to account for certain beef placed in his hands, as commission merchant, for sale. The bill states that said beef was duly accounted for; that two accounts were rendered; that the first was rendered by P., the complainant’s clerk, who is deceased, in which it is stated, in a memorandum at the bottom of said account, that a number of barrels yet remained on hands for sale, which number, with those sold, exceeded all that the defendant had, and that the action was brought for the excess so erroneously stated in said receipt. The bill also alleges that the beef was packed and freighted by (?., and the boat was steered by Y. The complainant states that he does not know any witness by whom he can prove the exact amount of beef which the defendant deposited for sale, and calls upon him to answer as to the several facts stated in the bill. The defendant, in his answer, says, he cannot admit the receipt signed by P. to be erroneous; but believes that the account so rendered states the correct amount of beef deposited for sale, and that he has more confidence in the correctness of said receipt than in his own recollection, and that it contains the best information he can give. He admits that 6. freighted the beef, and that Y. steered the boat. Exceptions for insufficiency and impertinence were sustained, and the defendant failing to answer further, it was ordered that such parts of the bill as were not sufficiently answered should be taken as confessed, &c. Held, that the answer was evasive.</p>

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

<p>Chapter 29, R. S. 1843, enacts that in every case where real estate has been sold under a judgment afterwards reversed, the judgment-defendant shall have restitution; or, in other words, the sale shall be inoperative, unless the purchaser, at the execution-sale, shall have had no notice of the errors or the pendency of the proceedings to obtain a reversal of the judgment, such as the parties or their attorneys are supposed to have.</p> <p>Such notice does not mean notice of the reversal.</p>

<p>Ail avowry for rent due need not show that the goods distrained belonged to the tenant.</p> <p>If the tenant wish to contest the landlord’s right to distrain, he should institute his suit against the landlord.</p> <p>If a constable justify under his warrant and obtain judgment on a demurrer to his plea, he is entitled to a return of the goods.</p> <p>A general plea of failure of consideration is bad.</p>

<p>If a party neglect to assert a right to re-purchase 'within the time limited therefor, he will wholly lose his right.</p>

<p>If a person knows there is an obstruction in a street, and he attempts to pass the place, when, in consequence of the darkness of the night, or of the rise of water over the street, he cannot see the obstruction, he has no reason to complain of the injury he may sustain on the occasion. He takes the risk on himself.</p> <p>It does not follow that, because a person receives a special damage by riding against a public nuisance in a street, he can maintain a suit for the injury, even against the person who put the nuisance there.</p> <p>The declaration in a suit for such damage must show that there was no fault on the plaintiff’s part.</p>

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

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

<p>The defendant contracted to furnish the plaintiff a certain machine for one hundred dollars, and, until it was constructed, he was to let the plaintiff have a machine, then finished, for his use. He delayed furnishing said last-mentioned machine for three months. Held, that the measure of damages was the value of the use of the machine during the time the plaintiff was deprived of it.</p>

<p>The action for mesne profits is an equitable one, in which every defence may be made under the general issue.</p>

<p>The taking of collateral security does not bar a suit upon the principal debt.</p> <p>If a debtor give his creditor notes as collateral • security, he cannot obtain credit therefor in a suit upon the principal debt, unless he can show that the notes constituting that security had been, or could have been, collected.</p>

<p>Debt on a bond given to a school commissioner, signed by A., C., and P. As to P., the bond was a forgery. The bond was delivered to C. to be signed and sealed, and it was re-delivered to the commissioner, by A. and 0., perfected. The commissioner was ignorant of the forgery, the name of P. having been placed on the bond after its delivery to C. for the signatures. Held, that A. was liable on the bond.</p>

<p>The complainant deeded to the defendant certain lands for 1,500 dollars. He received only 71 dollars and 50 cents, and took from the defendant his obligation, that if he re-paid the 71 dollars and 50 cents within a certain time, the lands should be re-conveyed to him; and, in case of his failure, the defendant was to pay off certain judgments against the complainant of over 1,400 dollars, which, with the amount paid in hand, would make the amount of the consideration mentioned in the deed: The complainant failed to re-pay the 71 dollars and 50 cents in time. About one-half of the judgments were in favor of the defendant, and he purchased those not due to himself, taking an assignment of them to himself or to some other person, and was using them to sell the farm of the complainant at sheriff's sale. A peipetual injunction was decreed restraining the assignment and collection of the judgments at law. Held, that the decree of the Court below was justified by the facts.</p> <p>Held, also, that as the instrument of writing did not purport to set out the consideration in full that was to be paid for the land, nor the manner of its payment, evidence showing what it was and how it was to be paid was admissible, as it did not. contradict the deed or instrument of writing.</p>

<p>The plaintiff petitioned the commissioners of Vigo county in 1838, to appoint three persons to assess the damages which he had sustained by the draining of Lost creek in said county. The persons so appointed reported to the board that they assessed the damages at 250 dollars. The board, the same year, set aside said report without ordering a new examination. In 1845, the plaintiff applied to the board to appoint persons to make an examination, &c., which the board refused. Held, that application for the second assessment was made too late.</p>

<p>The defendant was indicted for murder in the first degree. The jury found him guilty, as charged in the indictment, of murder in the first degree, and that he suffer death, &c. The Court rendered judgment on the verdict. Previously to the day named for his execution, the prisoner made his escape, and was afterwards retaken by the sheriff, and kept in custody until the then next term of the Court, at which term the prisoner was again brought before the Court by the sheriff, and, the fact of his escape, &c., being made known, the Court again awarded execution against him on the former judgment. Held, that there was no error in this.</p> <p>A new trial is rarely, if ever, granted on account of newly-discovered evidence, if the only object of the evidence be to impeach the character of a witness.</p> <p>It is not competent for a prisoner indicted for murder to give in evidence his own account of the transaction, related immediately after it occurred, though no third person was present when the homicide was committed.</p> <p>By our statute, no judgment of any Court of record can be set aside on motion, unless such motion be made at the term at which such judgment was rendered.</p>

<p>Petition by tile appellant. The following are the facts: The children named in the petition are infants under the age of 14 years; their parents are both dead, and the petitioner, the grandfather of the children, is their duly appointed guardian. The children have continued since their father’s death to live with the appellee, their step-mother, whose character is unexceptionable, and who has taken good care of them. The appellant and his wife are proper and fit persons to have the care of the children, and are well able to support and educate them. The children wish to remain with the appellee. Held, that the guardian was entitled to the custody of the persons of the minors.</p>

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

<p>The defendants gave their note to the plaintiff for 500 dollars, payable on the 19th of February; and, in ease of plaintiff’s death, to be paid to her heirs, and if not paid at the expiration of the time, the interest thereon to be paid at the rate of 10 per cent, per annum. The facts are as follow: The defendants applied to the plaintiff for a loan of 500 dollars, and offered to pay interest in advance at the rate of 10 per cent. The plaintiff made the loan, paying the defendants 450 dollars, and retaining 50 dollars for advance interest. The statute of 1838 was in force at the time. The Court calculated interest on the note from the time it fell due at the rate of 10 per cent, per annum, and included it in the judgment. Held, that the note was not usurious, and the judgment below was correct.</p>

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

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

<p>Bill in chancery against heirs to set aside a conveyance of land made by a deceased debtor in his lifetime for fraud, and for a sale of the land for the payment of debts. Sale decreed, and sheriff ordered to bring so much of the proceeds as would pay the decree in the case into Court, and to pay the overplus to the defendants. Held, that the decree for the sale was correct, but that the entire proceeds of the sale in such case should be paid into Court to be distributed among creditors, should there be such, in the course of administration.</p>

<p>Bill in chancery. The complainants, in 1842, borrowed of the defendant 140 dollars, and gave for the loan their pi-ommissory note, payable 12 months after date, for the sum of 215 dollars, with 10 per cent, interest, if not paid when due. The complainants assigned to the defendant a title-bond as a security for the payment of the note. They tendered to the defendant the amount of said loan, with the lawful interest thereon, to-wit, the sum of 172 dollars; and the bill states that “ they have ready in Court for him the said sum, but that he refused and still refuses to accept the same.” The bill states the note to be usurious, and prays for a decree that the defendant receive said money, brought into Court, in satisfaction of said note, and deliver up to the complainants the said note and title-bond. Decree in conformity with the prayer of the bill. Held, that the decree was right.</p>

<p>ERROR, to the St. Joseph Circuit Court.</p>

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

<p>Sjjectment. The lessor of the plaintiff claimed title under a deed from the original patentee, the defendant claimed under a sale for taxes. The land was assessed, for the year 1843, as the property of the patentee, and (returned delinquent for non-payment of taxes assessed for that year. The delinquent list was recorded October 23, 1844. The auditor commenced making out the list on October 1st, and gave as a reason why it was not completed before the 23d, that it could not be made out sooner. h?he recorded certificate of the auditor was read in evidence, which stated that he wrote three copies of the delinquent list and notice;’ that he put up one at the court-house door, and handed the-other two to the sheriff requesting him to put up one in each of the remaining commissioner’s districts; and that said advertisements were put úp publicly more 'than four weeks prior to the first Monday in January, 1845. No paper was published in. the-county. Hold, that, as a reason was ‘assigned for the delay in making out the list and notice, the jury might have found from the evidence that the'y were prepared for publication within a reasonable time after the day named in the statute. Held, also, that the certificate did not show that the requisite notice was given, and -therefore the sale was void.</p>

<p>^le Court may order the defendant’s witnesses to be removed out of Hie hearing of the evidence for the prosecution.</p> <p>By the statute in force previously to 1843, a person who was convicted of the crime of forgery was not rendered infkmous, and the provisions of the It. S. of 1843, apply only to subsequent convictions for that crime.</p> <p>In prosecutions, persons of skill can be called in to testify as to the genuineness of any bank note, &c. It is not necessary that they should tes.tify to the genuineness of the signatures.</p> <p>An accomplice is a competent witness.</p>

<p>The defendant subscribed for four shares of stoclt in the Liberty and, Ab ington turnpike company áfter a location had been made. Subsequently, this location was changed, and a different route adopted. Held, that said change did not, of itself, constitute any defence for the recovery of the subscription.</p> <p>Parol evidence is not admissible to prove that an agreement in writing to pay money unconditionally, was accompanied with an agreement that it should be paid conditionally.</p> <p>In this case the general issue was alone pleaded. Held, that the plea admitted that the plaintiff was a corporation, and therefore, an objection that the company was not properly oigamied whs hot tenable.</p>

<p>The statute prohibiting the retailing of spirituous liquors without license contains ho exception in favor of a sale for medical purposes. R. S. 1843, p. 979, s. 93.</p> <p>If a druggist, upon a proper occasion, bona fide, and with due caution, retail liquor to be used merely as a medicine, he will not be considered as having violated the statute.</p>

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

<p>Motion to amend a record. The motion was founded on affidavit, made by the attorney of the defendant, which stated that on, &c., the affiant filed in said Court, as exhibits in said cause, two writings obligatory for the payment of money payable to B., and assigned by the payee to the defendant’s intestate. These exhibits are referred to in the following entry of record in said cause: " This day come the complainant and the defendant, &c., and on said defendant’s motion he has leave, and now files the exhibits named in the answer of said defendant as of the date of the filing of said answer, the complainant objecting, &c.” A transcript of the record of said cause, certified to the Supreme Court, showed that said exhibits were not on file in the Circuit Court and could not be made a part of the record. The affiant kept no copies of said exhibits, but he said he had stated the substance of them. The object of the motion was to have the record so amended that the substance of the exhibits as sworn to, might appear of record. Held, that the motion shouldhavebeen sustained.</p>

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

<p>Ejectment. The following are the facts. In October, 1843, L., who owned the land in dispute, sold the same to the lessors of the plaintiff, who neglected to have their deed recorded until July, 1845. In September, 1843, C. took out, from the Vigo Circuit Court, a writ of foreign attachment against L. The sheriff’s return states that he had seized, as the property of £., several tracts of land in said county. At the No-vernier term, 1843, publication of notice to L. of the pendency of the suit was proved and cause continued. At the next term another writ of attachment was ordered to be* issued to Vanderburgh county and cause continued; that second writ was returned levied on the land in dispute. At the succeeding term. L. made default, damages were assessed, and judgment rendered against him, to be levied on the land attached in Vanderburgh county. In February, 1845, the sheriff, by virtue of an execution on said judgment, sold the land to the defendant, and, on the 18th of said month, made him a deed which was recorded on the 22d of February, 1845. The writs were each returnable in twenty days. Held, that the act of 1843 required no other continuance as to the first writ; that the second writ was a proceeding in that suit, and did not require any additional continuance or publication to give the Court jurisdiction of the whole case.</p> <p>Held, also, that the concluding words of the writ, namely, that the sheriff should return the writ within twenty days, were surplusage.</p> <p>A conveyance of real estate will, if not recorded in time, be defeated by a subsequent one if the latter be first recorded, unless the subsequent purchaser had notice of the prior conveyance.</p>

<p>Any judge of the Supreme Court, either in term or in vacation, has authority to issue writs of supersedeas.</p> <p>The fifteenth rule of the Supreme Court does not apply where an application for a supersedeas is made to a single judge after the. Court has discontinued its regular sittings from day to day.</p> <p>The Supreme Court will not hear a motion to discharge or set aside a supersedeas while sitting at chambers, unless by the consent of both parties to the cause in which it was granted.</p>