Volume 20 — Indiana Reports

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

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

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

<p>The case of Hamilton v. Railsback, infra, p. 392, followed.</p>

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

<p>Jurisdiction. — The jurisdiction given to the Court of Common Pleas to foreclose motgages, confers, also, the power in such cases to settle the title to the mortgaged real estate whenever it shall be in issue.</p> <p>Foreclosure. — The question as to the susceptibility of mortgaged premises to division, can only arise, where, in a proceeding for foreclosure, it becomes necessary for the Court to render judgment for the collection of installments, of which some are due and some not due.</p> <p>Practice. — Any error or defect in a judgment, in order to be available in tbis Court, must bave been made tbe subject of a proper objection in tbe Court below, and tbe basis of exception there.</p>

<p>Practice — Clerk.—Whatever of the proceedings of a Court should be brought before the Appellate Court, by bills of exceptions, can not be incorporated into the record of the cause, by the mere entries of the Clerk; and if they are so incorporated, they will not be available as parts of the record, on appeal. See Wilson v. Trueloch, 19 Ind. 389.</p>

<p>Contracts oe Married Women. — The separate mortgage and notes of a married woman, given to secure the payment of the purchase money, for real estate sold and conveyed to her, are void, and are not competent evidence for any purpose.</p> <p>Vendor’s Lien. — But the lien of her vendor for the purchase money is not thereby impaired, where the contract of sale on his part has • been fully performed.</p> <p>Statute oe Frauds. — And the fact that, by the terms of her purchase, in such a case, a part of the purchase money was not payablo until the expiration of a greater period than one year from the date of the sale, does not impair the vendor’s lien for the purchase money, because the Statute of frauds in such cases, applies to such contracts as are not to be performed by either party within a year.</p> <p>Witness. — Where a married woman purchases real estate, and dies, and her vendor sues to enforce his lien for the purchase money, against her husband and heirs, her husband is a competent witness for the plaintiff, but can not testify as to matters for or against his wife, or as to communications made to him by her during coverture.</p> <p>Evidence. — As to what evidence is sufficient to establish a vendor’s right to enforce his lien. ' See the latter part of the opinion herein,</p>

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

<p>Redemption — Constitutional Law. — The act of June 4, 1861, (Acts Spec. Sess. 1861, p. 79,) providing for the redemption of real property sold upon execution, &c., so far as the same was intended to apply to sales on judgments rendered upon contracts existing at and before its passage, is in conflict with Art. I., § 10, of the Constitution of the United States, which prohibits the passage of any law impairing the obligation of contracts. See Scobey v. Gibson, 17 Ind., 572.</p>

<p>The opinion herein relates to the boundaries of land, and the effect of errors in original surveys, and the construction of statutes effecting such surveys; but it can not be conveniently stated in a syllabus, and the reader is therefore referred to the opinion at length.</p>

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

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

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

<p>Notice of Vendor’s Lien. — The recital in a deed that a part of the purchase-money is unpaid, and that it is evidenced by certain notes, and that a lien therefor is retained, constitutes sufficient notice to a subsequent purchaser of the vendor’s lien, although such purchaser had no actual notice of such stipulations in the former deed.</p> <p>Where a subsequent purchaser might learn the existence of a vendor’s lien by examining the title deeds which constitute necessary links in the chain of his own title, he will be chargeable with notice of the existence of such lien, although he may not have actually examined those deeds and they may not have been recorded.</p>

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

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

<p>Practice. — Where proceedings supplementary to-execution are instituted, under § 518, (2 R. S. 152,) in vacation, the order thereby required to be issued by the Clerk, may be a common summons.</p> <p>Execution. — An execution may be issued during the term at which the judgment is rendered, upon-the request of "the judgment plaintiff, without motion, affidavit,-or-order of the'court.</p> <p>Proceedings Supplementary to Execution. — Section 518, (2 R. S. 152,) entitles a creditor, who has failed to collect his debt on execution, to a mere discovery as to the existence and value of the debtor’s property, within the county, and he only needs to make and file a statement in the nature of a complaint, as a basis upon which to issue the order on the defendant, but no answer by the defendant, either making or tendering is$uc, is authorized or necessary. .</p> <p>Jurisdiction. — In proceedings supplementary to execution, the fact that the title to real estate is incidentally involved, as for the purposes of discovery, does not deprive the Court of Common Pleas of jurisdiction; such jurisdiction exists, except where such title is the sole or principal thing to be determined.</p>

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

<p>Demand. — Where a note is made payable on demand, no demand need be made before suit is brought. The suit is a sufficient demand.</p> <p>Practice. — This court will not reverse a judgment for error in overruling or sustaining a demurrer, where the party against whom such ruling is made is in no way injured thereby.</p> <p>Evidence. — If a note is given upon a valuable consideration, parole evidence of a contemporaneous verbal agreement or understanding, will not be admissible, to change or destroy its legal effect.</p> <p>Demurrer. — A single demurrer, which purports to be filed to “ each ” of several paragraphs of a complaint or other pleading, should be taken distributively, as a separate demurrer to each.</p> <p>Practice. — Pleadings should be signed by the pleader, but if not so signed, and no objection is made until the parties enter upon the trial, the defect will be deemed to have been waived.</p> <p>A defence, based upon fraud, to be admissible in evidence, must be specially pleaded.</p> <p>Set-Oee — Limitation.—A set-off may be pleaded to the amount of the cause of action in any case, although barred by the statute of limitation,</p>

<p>Right of Replevin. — Any person, who is in the possession of personal property, whether he own it or not, as against a wrong-doer, is entitled to retain or recover such possession.</p> <p>Property Subject to Levy. — A was indebted to B in a certain sum, a small part of which B had agreed to pay to G, on account of money he owed him. B then gave G an order on A for the whole sum, and in payment thereof A gave G a check on a bank. G presented the check at the bank and the money was counted out to him and laid upon the counter of the bank. D, a sheriff, who was standing by, and had in his. hands an execution against B, seized the money by virtue of said execution, as the property of B, before' G had time to take it up.</p> <p>Held, that there was not, at the time of the levy, such a title to said money in B, as would, previous to its delivery to him, enable the sheriff to seize it as his property.</p>

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

<p>Dower — Limitation.—In 1837, A was a married woman, and her husband owned real estate, which, in 1838, he sold and conveyed by a deed in which she did not join. She was, at the time, a minor,' and attained her majority on the 23d day of April, 1842, and on the 30th day of January, 1862, she filed her petition for the assignment of dower in said real estate.</p> <p>Meld, that her right thereto was not barred, and that the same is governed by the statute of 1843, on the assignment of dower, (R. S. 1843, p. 811, § 112, and others,) which is continued in force by § 4, p. 431, 1 R. S. 1852.</p> <p>Pleading — Surplusage.—Where a complaint contains all the averments necessary to show the plaintiff’s right to the relief demanded, and also other averments which are unnecessary and immaterial, such averments will be deemed mere surplusage.</p>

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

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

<p>Will — Indians.—An Indian, consistently with the provisions of § 1, p. 232, 1 R. S. 1852, may he a bona fide resident of the United, States, although not a citizen, and may therefore transfer property by devise. Scott v. Sandford, 19 How. U. S. R. 361.</p> <p>Judicial Knowledge. — In an action to recover damages for the breach of a covenant of warranty in a deed, by. reason of a prior incumbrance, by a mortgage to the Sinking Fund, on the property conveyed, where the defendant pleádéd, that “the mortgage to the Sinking Fund was executed, and the land therein was sold, more than twenty years prior to the commencement of this suit, and more than twenty years have elapsed since the mortgage became forfeited for the nonpayment of the debt, to secure which the land Was mortgaged,” &c., but did not show when the mortgage was made, or the forfeiture occurred, the court will judicially notice, that an act, approved January 19, 1846, extended the time for the payment of such mortgages for five years, from January 1, 1847, and that the statute of limitations in this ease, therefore, could not have begun to run until January 1,1853, and that the plea is therefore unavailable to bar the action.</p>

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

<p>APPEAL from thé Laporte• Circuit Court.</p>

<p>Practice. — A motion to set aside a judgment rendered by default, in the Court below, and an exception for the refusal to grant the same, should precede an appeal to this Court.</p>

<p>Duress — Contract.—Where a man is arrested out of this State, upon criminal process sued out in another State, upon a charge of embezzlement, and is brought to this State, in the custody of an officer of such other State, and is taken to his wife, who resides here, and is the owner of real estate here, and she is induced, by his importunities, and the threats of the officer to take him back to such other State, and her desire to secure his discharge from imprisonment, to execute a mortgage upon her real estate, in which, her husband joined, to secure the payment of the money alleged to have been embezzled by him, and such mortgage was executed by her unwillingly, such mortgage will be void, because it was exeeuted under duress, the husband having been at the time held in illegal custody, by an officer'of another State, under a writ there sued out, which was no justification to him here.</p>

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

<p>Waiver. — In an action upon a policy of insurance, one of the conditions of which, requires the assured to procure a certificate of the nearest magistrate or notary public, of the loss, &c., and it appears that a proper certificate of such an officer was delivered to the agent of the company, in March, and that another such officer resided nearer to the scene of the fire, than the one who made the certificate, hut the agent made no objection to the certificate on that account, at the time it was delivered to him, nor at any time thereafter, until the trial of this action, in the following October, and it was then shown on such trial, that there was a promise to pay the loss by the agent, it should he held that the company had waived the defect, if any, in said certificate.</p>

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

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

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

<p>Agency — Partnership.—One member of a partnership can not make such a contract as will involve the creation of another partnership between his own firm and other parties, so as to bind thereby his co-partners, unless he has other authority than that which is incident to the mere relation of partners.</p> <p>Evidence. — But, in such case, for the purpose of showing authority to make such a contract, and the acquiescence of his partners therein, it is competent to prove that similar contracts had been repeatedly made by him before, which were ratified and executed by his co-partners without objection; and letters written by the objecting parties, tending to show their acquiescence in such contracts, are also competent evidence for the same purpose.</p>

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

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

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

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

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

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

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

<p>Practice. — A sued B on a note. B interposed no general denial to the complaint, but answered by way set-off.</p> <p>Held, That the defendant was entitled to open and close the argument on the trial, and that, the fact that the plaintiff replied affirmatively to the defendant’s answer, setting up new matter, did not change the rule, because, until the defendant had proved his set-off, the plaintiff could not be required to prove any thing.</p> <p>Where there are several issues in a cause, and the plaintiff is required to prove any one of them before he is entitled to a verdict, he is entitled to open and close.</p> <p>Semble, That, when the defendant is entitled to the opening and close of the argument, he is also entitled to open and close the evidence, and if he waives the latter right, such waiver will extend also to the argument; but, where the record is silent on the subject, this Court will not presume- that he waived the right to open and close the evidence.</p>

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

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

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

<p>Practice. — Where a demurrer is filed to the eomplaint, and is sustained by the Court, and exception is taken by the plaintiff, but the record on appeal fails to show that any final judgment was ordered, the appeal can not be considered properly before this Court.</p>

<p>Surety. — A recovered a judgment against B, as principal, and C, as surety, and execution was issued tbereon, and delivered to tbe sheriff, and became a lien upon ample personal property of the principal to pay the debt. The principal debtor then made a fraudulent assignment of all his personal property to A and another, who both had full knowledge of fraudulent purposes of their assignor. A then, under color of said assignment, removed all the personal property so assigned out of the county, and sold the same and appropriated the proceeds to his own use, in order that said judgment might be collected of G, the surety, and then assigned said judgment to D and E, who were innocent purchasers thereof, without notice of the facts aforesaid, and who were proceeding to collect the same of G.</p> <p>Held, that, by the acts of A in the premises, G was released from the payment of said judgment to him, if the same had remained his property.</p> <p>Held, also, that D and E, having become the owners of said judgment after the equities in favor of G had accrued took the same subject thereto, and therefore can not collect the same of G.</p> <p>Assignee op Judgment. — Assignees of a judgment, under our statute, take the same subject to whatever equities exist in favor of the judgment debtor.</p>

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

<p>Constable — Official Bond. — In 1858, A was duly elected constable for one year, and qualified according to law. In 1859, he was re-elected, and failed to qualify, but continued to perform the duties of the office. During the latter year an execution against B came properly into his hands, and B delivered to him a promissory note to hold as a pledge for the payment of the execution. After-wards, an arrangement was made by B by which C assumed the payment of said execution, and A was notified thereof. After-wards A, not regarding said arrangement, levied upon said note to satify said execution, and sold the same. Suit against A and his sureties on his official bond given in 1858, to recover'the value of said note.</p> <p>Held, that A, in selling said note, was guilty of malfeasance in office, and he and his sureties are therefor liable for its value on his official bond.</p> <p>Held, also, that he and his sureties, by his misconduct, are estopped to say that the sale conferred no title on the purchaser, and therefore B is not injured.</p> <p>Held, also, that A and his sureties are liable on the bond given in 1858, because, in legal effect, they thereby became responsible for one year, and until M’s successor should he elected and qualified.</p> <p>Held, also, that a constable’s return on an execution is conclusive evidence of the facts therein recited only against himself, but only prima facie evidence as to other cases.</p>

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

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

<p>Appeal. — Where a person files a claim, in proper form, before the Board of Commissioners of a county, for the repayment of taxes that haye been wrongfully assessed against him on real estate: which is situated in another county, and said Commissioners refuse to allow his claim, he is entitled to appeal from such judgment of refusal to the Court of Common Pleas.</p>

<p>Where a cause is tried in whole or in part before any other than the regular judge of the Court, the record should show legal authority in such person to act as judge, or it will be rejected by this Court.</p> <p>Criminal Law and Practice. — In a criminal prosecution, the defendant may prove, under the plea of not guilty, that he had already been put in jeopardy on the same charge, arid such defence needs not to be specially pleaded.</p>

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

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

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

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

<p>Exemplary Damages. — In that class of wrongs, the commission of which subjects the offender to a prosecution in the name of the State, under her criminal law, in addition to the civil remedy afforded the injured party, exemplary damages can not he allowed to such party.</p> <p>Testimony op Experts. — It is error to instruct the jury, that “ on questions involving science and skill, the opinions of scientific men in professions or pursuits to which such questions may pertain, are authoritative, and in all doubtful cases in which such questions are involved, should control the jury,” for, as to such testimony, as well as any other, it is the peculiar province of the jury to determine its credibility and weight.</p>

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

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

<p>Practice — Suit on an award. Answer, setting up a judgment byway of set-off. Tbe alleged copy of tbe record of tbe judgment, filed with tbe answer, was defective, in not reciting at length tbe pleadings and issues in tbe cause. There was no demurrer to the answer, nor motion to require a more complete record. Tbe alleged judgment was rendered by tbe Court in which this cause was pending. This cause was submitted for trial by consent.</p> <p>Held, That said answer was not so defective as that, under tbe circumstances, this Court should treat it as a nullity.</p>

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

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

<p>Remission of Forfeiture. — The Court of Common Pleas and Circuit Court kave no power to remit judgments upon forfeited recognizances, except upon cause shown.</p>

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

<p>Practice. — Suit to set aside a conveyance of land to a married wo"man, on the ground that it was fraudulent, and made for the purpose of securing said property from the creditors of her husband, and that her husband paid for it. Separate answer by the married woman, in fifteen paragraphs, the last of which alleged that the real estate was purchased with the proceeds of the sale of other real estate held by her in her own right, and that the deed therefor was made to her with the knowledge, consent, approval and advice of the plaintiff. Replies to each paragraph but the last, and none to that.</p> <p>Held, 1. That the failure to reply thereto was an admission of the facts therein pleaded, and entitled her to a judgment on the pleadings, and if, upon the trial, there had been a verdict for the plaintiff, she would have been entitled, upon a proper motion, to a judgment non obstante veredicto.</p> <p>2. That, as the verdict on the trial was in her favor, the same must be sustained by reason of said admission, although she failed, at the proper time, to move for a judgment on the pleadings. ■</p>

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

<p>Sheriff’s Sales. — Decree in foreclosure. Ten days after the adjournment of the Court, the Clerk issued an order of sale, without direction so to do, from the plaintiff, and two months thereafter the Sheriff, after due advertisement, sold the property to A, who bought in good faith, and without notice that the writ had issued without authority, or that the plaintiffs had no actual notice of the time of sale.</p> <p>Held, 1. That the Clerk ought not to have issued the order without direction from the plaintiffs therefor.</p> <p>2. That a bona fide purchaser could not be effected thereby, because he had a right to presume that the Clerk had done his duty.</p>

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

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

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

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

<p>Pleading. — In an action, before a justice, to recover the value of cattle killed by a railroad company, the complaint should aver that they were killed in the county, and, before the plaintiff, can recover, his proof must establish the fact.</p> <p>Practice. — In such an action, when appealed, to the Circuit Court, it would be error to dismiss the cause because the justice had not copied the cause of action upon his docket.</p>

<p>Practice. — In an action to recover the value of cattle killed by a railroad company, which is begun before a justice of the peace, and is taken on appeal to the Circuit Court, the action should not be dismissed because the justice had not copied the cause of action upon his docket.</p>

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

<p>Railroads. — A railroad company is not required to fence hér track in the immediate vicinity of her engine house, machine shops, car house, and wood yard, and the company is therefore not liable for stock killed by her in such places.</p>

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

<p>Practice. — If a party desires to avail himself of errors committed in the court below, he must take the proper steps there to bring such errors properly to the attention of this Court.</p>

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

<p>Practice. — When a cause is brought to this Court upon alleged errors in sustaining demurrers to the complaint, and the appellant’s counsel fails to point out the alleged errors, this Court will not search for them.</p>

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

<p>Estoppel. — Where a guardian, who is also the mother of her ward, and owns a dower interest in the ward’s real estate, applies for the sale of her ward’s real estate, describing it as the entire title, and says nothing in any of her proceedings of her own interest, and an order is made for its sale in that way, and she makes the sale and completes the proceeding without giving any notice dr intimation of her interest, she will be forever estopped to claim any such interest.</p>

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

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

<p>Estoppel. — A judgment is recovered against A, who is the owner of an engine, boiler, &c., formerly- used in connection with a flouring mill he owned at the date of the judgment, upon which mill there were then several mortgage liens. An execution was issued on the judgment and levied on the engine, boiler, &c., and after the levy, A sold them, with the consent of the mortgagees.</p> <p>Meld, that such mortgagees were thereby estopped afterwards to deny that said property was personalty and subject to the lien of said execution.</p>

<p>Costs. — A sued B before a justice of the peace. B, before trial, offered to confess judgment for 7 dollars; A refused to accept the offer. There was a trial and judgment for A for 6 dollars and 85 cents, and the cost, accruing against B, after the offer to confess, was 10 dollars and 60 cents. A appealed to the Common Pleas Court and there recovered judgment for 8 dollars and 86 cents.</p> <p>Held, that A was entitled in the latter Court to judgment against B for all the costs in the case.</p>

<p>Practice. — 'Where the record on appeal to this Court fails to set fbrth the evidence, this Court will presume that the rulings of the inferior Court were correct.</p>

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

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

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

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

<p>Pleading. — In an action against tbo makers on a note signed by two persons, by tbeir surnames alone, in the usual form of the signature of partners, it is not necessary to aver in the complaint that the makers of the note were partners.</p> <p>Judgment. — And on such a note a separate judgment may he taken against one of the parties to it.</p> <p>Usury. — In a suit on a note which on its face bears 10 per cent, interest, the Court may render judgment for the principal with 6 per e.ent. interest.</p>

<p>Parties. — The mere fact that a person is named in a contract as the agent of the principal therein named, to perform his agreement, does not make such person a necessary or proper party in an action to enforce performance of such contract against the maker of it.</p> <p>Witness. — In an action for specific performance of a contract for the conveyance of real.estate, if the principal in the contract dies pending the suit, and his heir at law, an infant too young to he competent to testify, is made defendant, such facts do not render the plaintiff an incompetent witness on his own behalf.</p>

<p>Common Schools — Pleadings.—In an application for a mandate to enforce the admission of a person to a common school, the complaint should affirmatively show that the applicant is under twenty-one and not under five yeará* of age, and unmarried, and neither a negro nor mulatto, nor the son or daughter of a mulatto, or such complaint will be defective on demurrer.</p>

<p>Highways — -Practic®.—A petition for the location of a highway need not affirmatively show that the petitioners are freeholders, or that six of them reside in the immediate neighborhood of the contemplated highway, and such facts may be proved on the hearing of the petition, although not alleged therein.</p> <p>But when such an application is taken by appeal to the Circuit Court, it will stand for trial there on its merits, as if originally instituted in that Court, and proof there as to what had been provod before the Commissioners, will not be competent, and the transcript of the proceedings before the Commissioners need not contain the proofs adduced before them.</p>

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

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

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

<p>Criminal Law and Practice. — The record in a criminal prosecution upon indictment, should show that a grand jury was impanneled and returned the indictment into Court, according to law; but if the record, at the time of trial, fails to show such facts, it is competent, during the term at which the trial was had, for the Court to make the entry of record necessary to show such facts.</p>

<p>Criminal Law and Practice. — An information for selling liquor without license, need not state the kind of liquor sold, but should aver that it was intoxicating liquor, and on the trial it must be proved to have been suoh liquor, as the same is defined in the statute on that subject.</p>

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

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

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

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

<p>Practice — Waiver.—When the defendant amends his answer, after a demurrer has been sustained to it, he waives all right to complain of the' ruling on the demurrer.</p> <p>Pleading. — An answer which sets up a partial failure of considera-, tion in bar of the whole cause of action is bad.</p> <p>Vendors and Purchasers.— Quaere, Whether, where property is condemned for public use, the equitable owner is not entitled to the damages in lieu of the land, and whether such condemnation in any way affects the relations of the vendor and vendee.</p>

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

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

<p>Mechanics’ Lien — Constitutional Law. — Article 36 of the code, on the subject of mechanics’ liens, (2 G-. & H. 298,) is not unconstitutional by reason of any defect in the title of the act of which it is a part, but may be construed as merely providing a remedy for the collection of a debt.</p>

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

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

<p>Estoppel. — Where the maker of a promissory note is inquired of by a person who has already purchased the note, as to its validity, and answers that the note is all right, and that he will pay it, and that he was glad the purchaser had become the owner of it because he was able to give him more time, and that he would pay him ten per cent, interest if he would wait on him, and that the note was secured by mortgage, and the purchaser agreed to and did wait on him for an indefinite time, and until his assignor became insolvent, in consideration of the increased rate of interest, such facts do not estop the maker to contest the validity of the note of to set up a failure of the consideration thereof.</p>

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

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

<p>Contract- — Promissory Note. — A, as principal, and B, C, D, and B, as his endorsers and sureties, were indebted by note to F., in a certain sum,, which was past due. They desired further time for payment. It was agreed therefore that the debt should be renewed, and new notes, by way of renewal, executed by the same parties, but without any agreement as to the time for which the renewal notes should run. A then procured blank notes, and caused them to be filled, except as to the time of maturity, and signed by himself, and endorsed by A, (7, D, and E, as his sureties, and delivered in that condition to E, who thereupon, filled the blank for the time with 3 months. At the time the notes were endorsed by some of the parties, it was represented to them by A, that the renewal would be for 4 months, and they endorsed the note with that understanding, but F had no knowledge of and did not authorize such representations. The notes were not paid at maturity; F sued on them. A made default. The endorsers answered by a general denial under oath, and, on the trial, admitted that their signatures were genuine, but urged that the notes were void, because they had been altered by F, by inserting 3 months instead of 4, after they had been executed and delivered by them.</p> <p>Held, 1. That the general denial under oath, merely put in issue the execution of the notes, and excluded all questions of usury, want and failure of consideration, and frand, except in connection with the execution of the notes.</p> <p>2. That, under the circumstances, F was, by implication, authorized by the parties to fill up the blank as to the time of payment, at his discretion.</p> <p>3. That the representations of A to the endorsers could in no way effect the rights of F, who had not authorized, and had no knowledge of them, and that proof of such representations, under the issues, was irrelevant.</p> <p>4. That, upon the issues, and the admissions of the endorsers, the burden of showing the invalidity of .the notes rested upon them.</p>

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

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

<p>Payment oe Interest on State Debt. — Neither section 16, 1 G-. & H. 650, nor section 3, 1 G-. & H. 503, nor section 5 of the act of January 19, 1846, nor section 14, of the act of January 27, 1847, nor section 2, art. 10 of the Constitution of Indiana, nor any other subsisting law of the State, authorizes the State Officers, or any of them, to pay the interest on the State Debt, without a specific appropriation by law of the money necessary to pay the same; nor does either of said sections, or any subsisting law of- the State make such appropriation.</p>

<p>Criminal Law and Practice. — An information for arson, which contains an averment in these words : “ and the said A A is in the Vigo county jail on the charge of said felony, and not indicted by the grand jury,” sufficiently shows that no indictment had been returned by the grand jury against the defendant on that charge.</p>

<p>Landlord and Tenant. — Bents, which have accrued previous to the death of the lessor, are collectable by the personal representative, but those that accrue afterwards by the heir!</p> <p>Parties. — In an action for the recovery of rents, from a tenant, by the heirs of a deceased lessor, if it appears that a part of the heirs are children of the lessor, and others are his grand children, the complaint should make all the heirs parties, and should indicate-the relative interest of each, and the personal representative might' also be made a party if rents due to the heirs had been paid to him'..</p>

<p>Mortgage — Delivery oe. — B executed a mortgage of real estate to G, in his absence from the State and without his knowledge, and caused the same to be recorded in the proper office, andjafterwards, oefore the mortgagee had accepted and received the mortgage, either in person or by agent, J) recovered a lien upon the mortgagor’s title in the mortgaged property. Held, that such lien is entitled to the preference over the mortgage.</p> <p>A mortgage must not only be delivered to, but must be accepted by, the mortgagee, or the title will not pass, and, to make a good delivery, it would seem that the mortgage must pass under the power of the mortgagee, or some person for his use, with the consent of the mortgagor*</p>

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

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

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

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

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

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

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

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

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

<p>Practice — Dismissal.—After a cause has been submitted- to tbe Court for trial,.and all the evidence and arguments of counsel have ■ been beard, and tbe Court has announced its decision to be adverse to plaintiff as.to one of tbe defendants, and was in the act of announcing it as to the other, when a motion was interposed by tbe plaintiff for leave to dismiss bis suit, it being apparent from tbe progress the Court bad made, in its announcement that tbe decision would be adverse to him, it would be error in tbe Court to sustain bis motion and dismiss tbe cause.</p>

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

<p>Taxation. — Land in'Indiana, purchased of the United States at any time within five years- next before May 31, 1852, is exempt from taxation for five years from the date of purchase, by reason of the provisions of section 5, p. 208, B. S. 1843. •</p>

<p>Pleading — Action on Covenants. — In a suit for a breach of covenant, it is sufficient to aver the breach negatively, in the words of the covenant; but Such averment does not necessarily involve the right to recover more than nominal damages, and would not constitute a defence to an action for purchase money beyond one cent.</p>

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

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

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

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

<p>In 1853, the Commissioners of the Sinking Fund sold certain real estate to A, on credit, and took his obligation therefor, with B as surety, payable in five years, with interest, payable annually, and gave A a certificate, which recited the sales and terms thereof, and that “in case of any default of payment, according to the terms of purchase, then the premises shall be immediately forfeit and revert to the State, with all payments and improvements thereon, and the State shall be entitled to re-sell at any time.” A took posses-session, and, before maturity of his obligation to the State, sold the land in separate parcels to different persons, and received in full the consideration therefor, and gave them respectively his bond for title-, at a future time. A,, and B, his surety, failed to pay the State for the land, and the State, having tendered a deed to A, sued A and B, on their obligation for the purchase-money, making A’s grantees parties.</p> <p>Held, 1. That they were proper, if not necessary, parties, for the purpose of adjusting the equities between them and the surety of A.</p> <p>2. That, in the absence of other intervening equities, B, as A’s surety, upon payment of the money, would be entitled to be subrogated to the rights of the State in respect to tlie land.</p> <p>3. But, under the circumstances of this case, the equities in favor of A’s grantees, who have once paid .for said land, are superior to those of B, as such surety.</p> <p>4; That it was optional with the State, either to enforce the contract with A, by complying with its terms on her part, and collecting the purchase-money, or to avoid the contract in. consequence of the breach thereof by A,' and to re-sell the land.</p>

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

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

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

<p>Criminal Law and Practice. — An information is sufficient, both to give the Court of Common Pleas jurisdiction, and to allow proof of a former conviction of the defendant for a like crime, which charges, that the defendant “on, &c., at, &c., did feloniously steal, take and carry away two horse-shoes, of the personal goods and chattels of A, of the value of 75 cents, and that, in default of 100 dollars hail, required by the committing magistrate, to secure his appearance at the next term of the Allen Circuit Court to answer said charge, the defendant was committed to the jail of Allen county, where he is now confined, and that there is no indictment now pending against him for said charge, and that at the February term, 1858, the said defendant was indicted in the Allen Circuit Court for the crime of petit larceny, and pleaded not guilty thereto, and was in said Court duly convicted of said charge and judgment was rendered in pursuance of said corWietion.”</p>

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

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

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

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

<p>Pleading. — Semble, That, where the defendant pleads a written contract, which, on its face, shows that he was bound to perforin certain acts before the performance of its stipulations by the plaintiff, the defendant must aver the performance of or an excuse for the failure to perform, the acts to be performed by him.</p>

<p>Practice — Partition.—In actions for partition, it is competent for the Court, at any time before final report, upon proper evidence, to amend its record by correcting any clerical mistake in the description of the land.</p> <p>The fact, that the commissioners were appointed and sworn before the making of such correction, and made their report afterwards and with reference to it, does not effect the validity of their report,, if they have performed their duties in other respects.</p>

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

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

<p>Practice. — Where the verdict and judgment are clearly right on the evidence, this Court will not inquire whether the instructions' of the Court below were strictly correct or otherwise.</p> <p>Action — Trespasser.—Where a person, in the first instance, acts under an authority vested in him by law, and afterwards abuses it, or fails to comply with the terms and conditions on which it was granted, he must he deemed a trespasser ab initio.</p>

<p>Jurisdiction. — The Circuit and Common Pleas Courts have jurisdiction, on the application of his creditors, to set aside a fraudulent sale of real estate, made by a deceased person.</p>

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

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

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

<p>Sheriff’s Sale — Property Subject to Execution — A judgment is no lien on land which the debtor holds by a bond conditioned for the execution of a title on payment of the purchase money, though he had taken possession and paid the money, either before or after the rendition of the judgment; and a sheriff’s sale, on execution against the obligee, of land so held, conveys-to the purchaser no effective interest in the premises, and gives him no right, by way of subrogation, or otherwise, to take the place of the obligee in the bond.</p>

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

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

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

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

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

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

<p>APPEAL from the Knox Cii’cuit Court.</p>

<p>Pleading — Receiver.—Where a railroad company, in answer to an action to recover the value of animals killed by its machinery, desires to set up the fact that its road is in the- possession of, and being operated by, a receiver appointed by a Federal Court, the answer should be accompanied by the original or a copy of the order of the latter Court for the appointment of the receiver.</p> <p>Railroad — Receiver.—The mere appointment of a receiver, with the powers usually given to a receiver in chancery, does not relieve the railroad company from liability to suit. The receiver operates the road subject to that liability.</p> <p>Same — Statutes Construed. — The act of March 4, 1863, (Sess. Acts 1863, p. 25,) is probably valid where it operates alone on persons and rights under the laws of the State of Indiana, but, so far as it undertakes to empower the State Courts to control the earnings of railroads which have been placed in the care and management of receivers, by orders of Federal Courts, it is inoperative and void.</p> <p>In such cases, applications for relief should be addressed to the proper Federal Court.</p> <p>Jurisdiction — Habeas Corpus, &o. — As to the, eases in which the State Courts, upon writs of habeas corpus, or otherwise, may inquire into the conduct of officers of the United States, and discharge or recommit persons held in custody by them, the reader is referred to the opinion herein at length.</p>

<p>Descent — Action.—In 1859 a man died, leaving a widow and children. One-third of his real estate descended to his widow. She and B, in 1860, executed a joint and several promissory note for the payment to O of a sum of money. Afterwards she and B intermarried. She then died, the children by her former husband surviving her. B then became insolvent. C sued the children by the former husband to subject the interest which had descended to their mother, as aforesaid, to the payment of said note. The children claimed that, by reason of her subsequent marriage, she took but a life estate therein, and that, therefore, it was not subject to sale for payment of said note.</p> <p>Held, That, under the circumstances, she took a third in fee, and that it was liable for the payment of her debts, and said action would lie.</p>

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

<p>Pleading. — In an action by an assignee to enforce the lien of a judgment on certain real estate, .the complaint should contain a copy of the judgment and assignment thereof to him.</p>

<p>Criminal Law and Practice. — Where the record on appeal to this Court, in a criminal case, shows that two indictments were duly returned against the defendant, it should also identify the particular indictment upon which the defendant was tried as one of them.</p>

<p>Statutes Construed — Witnesses.—The second proviso of the third section of the act of March 11, 1861, (Acts 1861, p. 52,) must be literally construed.</p>

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

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

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

<p>Attachment — Pleading and Practice in. — Action upon notes, and attachment obtained at the institution of the suit, based upon an allegation in the complaint, that the defendant was about to sell Ms property subject to execution, with the fraudulent intent, &c., and the complaint was verified. The defendant appeared and answered to the attachment both by a general and special denial of the facts averred as the basis thereof, and other issues were formed by pleading-to the complaint generally. No objection was made to the answers to the attachment on the ground that they were not verified. On all the issues thus formed, the cause was tried by the Court, and judgment rendered for the plaintiff, (the Bank,) generally, without any order for the sale of the attached property. The plaintiff then moved the Court for such an order on the ground that judgment had been rendered in the main action without any trial or finding on the attachment, and because no plea or answer to the attachment had been filed and duly verified. Motion overruled. Defendant then appealed from the general judgment to the Supreme Court, and the plaintiff obtained a change of venue in the attachment matter to another Court, and the latter Court, on the defendant’s motion, dismissed the same, and from the judgment of dismissal, the plaintiff appealed to this Court.</p> <p>Held, 1. That the attachment in this case was not a separate auxiliary proceeding, but part of the original suit, and the issues based upon it should have been tried, and will be presumed to have been tried, in that suit.</p> <p>2. That the burden of proof upon such issues rested upon the plain- - tiff, and he should have offered his evidence, if he had any, upon the trial of the issues in the main action.</p> <p>3. That the answers to the attachment, if in abatement, should have been verified in accordance with the provisions of section 200, p. 706, R. S. 1843,* which is judicially incorporated into the code of 1852, to supply an omission.</p> <p>4. But, that still there was no error committed below, because the plaintiff’s failure to object to them on the ground that they were not verified before going into the trial, was a waiver of such verification, and made the answers sufficient without it.</p> <p>5. That it was, therefore, error to grant said change of venue, and the Court, to which the same was taken, properly dismissed it.</p> <p>The decision in the case of Smith et ál. v. The Banh of the State, &e., 18 Ind. 327, is adhered to and followed..</p> <p>Pendency oe Action in another State.' — The pendency of a suit in another State is not a bar to, or matter in abatement of, a suit for the same cause in this State.</p>