Volume 3 — Blackford's Indiana Reports

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

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

<p>An answer in chancery acknowledged the receipt from the complainant, of an assignment of property in part payment of the defendant’s demands against him; but the answer also stated that the defendant had afterwards cancelled the assignment. _ Held, that the defendant’s statement in the answer, that the assignment had been cancelled, was no evidence for him of that fact.</p> <p>In a suit either at law or in equity against two partners, the individual demand of one of the defendants against the plaintiff, is not-a proper subject of set-off.</p> <p>When a payment in part of a demand is 'made, and the payment exceeds the ' interest then due, the payment is applied in discharge of the interest, and the surplus goes to the credit of the principal. But if the payment is less than the interest due, the principal remains on interest until payments exceeding the interest are made, and then the payments are applied as above-mentioned,</p>

<p>In an action at law on an obligation alleged to be lost, the declaration must describe the obligation correctly.</p> <p>A declaration in covenant, on’ an obligation averred to be lost, described the obligation as being dated on the first of November, 1826. Held, that the action was not sustained by proof that an obligation like that described in the declaration except as to the date, was executed by the defendant on the sixteenth of April, 1827.</p> <p>If the performance of a condition precedent be averred in-the declaration, and put in issue by the plea, the averment must be proved as laid,</p>

<p>The plaintiff produced a receipt in evidence and proved its execution, hut did not offer to read it until his closing argument to the jury: the reading of the receipt was then objected to, because it had not been previously read. Held, that the objection was insufficient.</p> <p>The circumstance that a deposition, which had been three days on file, had not been opened before the jury were sworn, is not of itself a sufficient objection to its being afterwards opened and read in evidence. ■</p> <p>Semble that a jury may, by leave of the Court, seal up their verdict, separate for the night, and deliver in the verdict next morning; but that if, in the interim, any of the jurors be improperly practised upon, the verdict will be set aside.</p>

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

<p>The law of set-off applies only to debts which are liquidated and due in the same right. ■</p> <p>In an action brought by A. against C. for a debt due to A. by C., the defendant cannot set off a debt due to him by A. and JB.; and the circumstance that A. and S. are non-residents, and have no property within the state, makes no difference.</p>

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

<p>If the board doing county business select, from the list of taxable persons, the names of the petit jurors, according to its discretion, instead of causing their names to be drawn from a box by the clerk, according to the statute, out of the whole number selected, — it is a good cause of challenge to the array.</p>

<p>If one of two joint debtors die, the survivor may be sued for the debt; and if the survivor be insolvent, the estate of the deceased debtor is chargeable for the debt in equity.</p> <p>A person set out from this state for Neiv-Orleans on a trading voyage, leaving his wife and five small children in a destitute situation. His debts exceeded the value of his property, and he did not live to .return home. Within a year after his departure, and before his wife had any certain knowledge of his death, she had used the property left by him in the support of the family and in the payment of his debts. Held that, under these circumstances, the widow was not liable, as an executrix de son tort, to the creditors of her husband.</p> <p>If a father and son are both called A. B., by naming A. B. the fatherrima facie shall be intended.</p> <p>B. received from A., resident in Ne-w-York, 100 dollars with a request to buy with the money a tract of land for A. in Indiana, to take the title in A.’s name, and permit the son of A. to occupy the land during A.’s pleasure. B. accordingly bought a tract of land for A. in this state, paid on it the money received from A., took an assignment to A. of the certificate of purchase, and delivered the same to him. The son occupied the land, and paid the further sum of 110 dollars of the purchase-money. Held, that this purchase must be considered as made for the father alone; that the legal and beneficial interest was vested in him; and that the land was not liable for the debts of the'son.</p>

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

Smith sued Farley before a justice of the peace and obtained a judgment. Farley appealed to the Circuit Court, and a judgment was there also rendered against him.

<p>Declaration in debt by an execution-plaintiff on a delivery-bond payable to tbe sheriff, conditioned for the delivery of the property on a certain day. Suggestion on the record, that the bond is defective in not being made payable to the plaintiff. . Breach, that the property was not delivered on the day specified in the condition, nor at any other time since the execution of the bond. Held, on general demurrer, that the declaration was good.</p> <p>A declaration in detinue may be objectionable on general demurrer, if it do not aver the value of the property; but the averment of value, in trespass or trover, or in suits on contracts for the delivery of property, is only matter of form.</p>

This suit wascommenced by the appearance of Hoover and Hanna, in the Circuit Court, and their filing an agreement entered into by them, relative to certain facts connected with their respective claims to the office of clerk of the Circuit Court in Wayne county. The agreement concludes with praying the Court to determine which of the parties was entitled to the office. The Circuit Court, thereupon, gave judgment in favour of Hanna.

<p>A person being imprisoned by virtue of a mittimus issued by a justice of the peace, which did not show the cause of commitment, brought an action of trespass against the justice, the constable who executed the mittimus, and the persons who assisted the constable. Held, that the mittimus was no justification for the defendants.</p> <p>In an action of trespass in the Circuit Court, in which the damages claimed exceed 20 dollars, the defendant, if found guilty, is subject to costs, though the damages assessed be less than 20 dollars.</p> <p>Trespass for an assault, &c. against four persons. Two were found guilty, and two were acquitted. Held, that the defendants acquitted were entitled to costs. Held, also, that under the statute law, a defendant is entitled to costs in all '•ases in which he obtains a verdict.</p>

<p>A. conveyed a tract of land to B. in consideration of a certain sum of money, and B. on the samo day obligated himself by a bond, to re-convey the land to the grantor on the repayment of the purchase-money within a certain time. Held, that these two instruments of writing, taken together, amounted to a mortgage.</p> <p>The doctrine that an obligor or grantor shall not be permitted to stultify himself, in order to avoid his bond or conveyance, is not recognized in modem times. But that doctrine, were it recognized, would not prevent the heirs of an obligor or grantor from showing his incapacity to contract.</p> <p>A conveyance may be avoided by a grantor either at law or in equity, if, at the time of its execution, he was so destitute of understanding as not to know what he was doing, whether the incapacity were occasioned by idiocy, lunacy, or drunkenness.</p> <p>But the mere circumstance that, in the opinion of a witness, the grantor was too much intoxicated, when he executed the deed, to transact business safely, — is not sufficient of itself to avoid the deed.</p>

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

<p>A bond commenced as follows: Know all men, &c. that we, Lionel J. Larkin, . Dennis Carroll, &c. are held, &c., and the form of its execution as concerned Larkin was as follows: — For L. J. Larkin, George Crum, [L. S.] Held, that so far as relates to the face of the bond, Larkin must be considered as one of the parties to it; but that its execution would have been more formal had it been thus — Lionel J. Larkin, [L. S.] by George Crum his attorney.</p>

<p>If a special plea, denying the execution of a note on which the suit is founded, be not verified by affidavit as the statute requires, and the plaintiff make no objection to the plea on that ground, but go to trial on the merits, — he is presumed to have waived the formality of the affidavit.</p> <p>Iffor a debt due to him from JB,, take a note executed by jB. in the name of the firm of JB.& C., without the knowledge of C., it is a fraud on C. and the note does riot bind him: and if JO., supposing from its face that the note has been duly'executed by _B, & C., execute it with the intention of being their surety, it is also fraudulent and void as to him.</p>

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

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

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

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

<p>If a justice of tke peace, in the discharge of any'of his ministerial or judicial duties, act corruptly to the injury of a party, his conduct is a breach of the condition of his official bond. ' ..</p>

<p>A voluntary conveyance of real estate, though not recorded as prescribed by statute, is valid against any subsequent voluntary conveyance of the property executed by the grantor.</p> <p>A purchaser of real estate at sheriff’s sale obtains all the interest that the execution-debtor had in the property.</p>

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

<p>An administrator cannot be sued for the devastavit of his intestate, by an administrator de bonis non of the first intestate.</p>

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

<p>Scire facias by the executors of Jl. against B. and 0., to have execution against them on a replevin-bond executed by B. with C. his surety, and payable to the testator. Plea by C., that the testator in his life-time took out a fieri facias against the defendants on the bond, and placed it in the hands of the sheriff, but withdrew it, without C.’s consent, before it was levied; that whilst the execution was in the sheriff’s hands, B. had sufficient property out of which the money could have been made, and that he afterwards became and still continued to be insolvent. Held, on demurrer, that the plea was insufficient.</p> <p>Held, also, that the mere delay of a creditor in not proceeding at law against the principal debtor, is no defence to a suit against the surety.</p> <p>Letters testamentary or of administration granted in another state were not recognized here, by the statute of 1824, until recorded in a Circuit Court of this state; but they are now so recognized, under the statute of 1831, upon their being filed with the clerk of the Court in which they are to be introduced.</p>

<p>ERROR to the Washington Circuit Court. This suit was commenced before a justice of the peace of Monroe township, Washington county, by Zink against Nelson. , .</p>

<p>Debt on an executor’s bond, against the administrator of the surety. The declaration did not aver that the relators were entitled to recover as heirs, legatees, or creditors of the testator, nor that assets subject to the claim had come to the hands of the executor; but it stated, that a decree had been recovered by the relators in a suit against the executor. Pleas, performance by the executor, plene administravit by him, &c. Issues on the pleas, and verdict for the plaintiff.</p> <p>Held, that the defects in the declaration, as to the want of the averments mentioned, were cured by the verdict. ■ Held, also, that the decree referred to in the declaration, without a record of the previous proceedings, was not admissible as evidence, and, semble, that, independently of that objection, the decree was inadmissible.</p>

<p>If a person, recognized to appear in the Circuit Court to answer a criminal charge, make default, and the recognizance be declared forfeited, a scire facias may issue against the cognizor without the entry of a judgment.</p> <p>A scire facias on a recognizance not taken in a Court of record, should show by whom it was taken and filed, and that the person who took and filed it, was authorised to do so.</p>

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

<p>Jl. being indebted to H, purchased a tract of land, &c., and, with the fraudulent intent of securing it against H.’s claim, took the conveyance in the name of C., the infant son of Jl. Held, that H., having obtained a judgment against Jl. for the debt, might, by a suit in chancery, subject the land to the payment of -the judgment.. ...</p> <p>The parties in a suit in chancery submitted the cause on bill, answer, exhibits, and depositions, for a final decree. Held, that the filing of a replication was, under these circumstances, waived by the defendant.</p>

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

<p>The recorded plat of a town, showing the width of a certain street, was introduced as evidence to prove the width of that street. Held, that parol evidence to show that the proprietor of the town intended the street to be of a different width than, was shown by the plat, was inadmissible.</p> <p>In trespass quare clausum fregit, the defendant cannot, under the plea of not guilty, prove that the Iocícs in quo was a highway; this defence requiring a special plea.</p> <p>A bargainee, except in the case of an adverse possession, may récover in trespass quare clausum fregit, by proving property in the locus in quo, without showing a previous possession.</p>

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

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

The only error complained of in this case was, that the judgment below was for too large an amount. The defendant in error was permitted, upon his application, to enter a remittitur on the record of this Court, for the surplus, and then the judgment was affirmed, but without costs in error (1).

This was an action ^ agajnst W. Cassady. Demurrer to the declaration and judgment for the plaintiff below. After the rendition of the judgment, W. Cassady died, and his administrators have sued out this writ of error.

<p>Case for obstructing a navigable river to the plaintiff’s injury, &c. The declaration averred that on, &c. at the county of J\I., (in which the suit was brought,) the defendant built a dam across the east fork of White river in said county, the said river being then and there a navigable stream. Seld, that after verdict, the declaration could not be objected to,, for not stating more explicitly that the river was a public highway.</p> <p>A jury, by consent of the parties and the Court, sealed up their verdict in the evening, separated, met again in the morning and gave it in. The verdict ■ being defective, the jury retired by direction of the Court, reconsidered it and returned a correct one. Seld, that this proceeding was not erroneous.</p> <p>In an action on tort against several defendants, the assessment of damages must be entire against those who may he found guilty.</p> <p>If any of the defendants in such a case are acquitted, and they neglect to ask a judgment for costs, the want of such a judgment does not render the proceedings erroneous.</p>

<p>ERROR to the Marion Probate Court. In this case English, assignee, &c. was the plaintiff below, and Sinks, administrator, &c. the defendant.</p>

<p>A defendant, appealing from the judgment of a justice of the peace on an award, cannot have the cause tried by a jury in the Circuit Court, unless the award be first set aside for fraud, corruption, or other undue means.</p>

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

<p>Debt on bond conditioned for the performance of certain work within a iimited time. Held, that a plea of readiness to do the work, and of the plaintiff’s refusal to permit its performance, should show that the refusal, &c. was before the expiration of the time for doing the work.</p> <p>Held, also, that a plea in such case, of an agreement to prolong the time and of performance, &e. should show that the work was, within the enlarged time, performed and accepted in discharge of the bond.</p> <p>Ia aa action by a road commissioner on a bond, his predecessor to whom the bond was given, not being interested, is a competent witness for the plaintiff.</p> <p>On a writ of inquiry of damages, in a case of breach of contract as to the performance of certain work, the defendant may, in mitigation of damages, prove that a part of the work had been done, under the contract, to the plaintiff’s benefit.</p>

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

<p>ERROR to the Harrison Circuit Court. David Hunter was the complainant in the Circuit Court, and' JYathaniel Hoicroft, Ephraim W. Bentley, and Ezekiel W. Bentley, were the defendants.</p>

<p>To an action on a note for the payment of a certain sum, at a certain time and place, in hats, it is a good defence, that the defendant was ready to deliver the hats at the time and place appointed; was always ready, and is still ready, to-deliver-them at the place on demand.</p>

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

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

<p>An instrument of writing executed with a scroll, instead of with a wafer or wax seal, is-a sealed instrument.</p> <p>If a note under seal for money be payable on demand, a suit lies on it without making a' previous demand.</p> <p>If in an action on a sealed note for the payment of a sum. certain, there-be a demurrer to the declaration, and judgment for the plaintiff, — the Court may assess the damages.</p>

<p>In a suit on a contract to deliver a certain number of hogs to the plaintiff, to be paid for on delivery, the declaration must aver a payment or tender of the purchase-money, or a readiness to receive and pay for the hogs.</p>

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

<p>To an action of debt on bond, the defendant may plead generally that the bond was obtained by fraud, covin, and misrepresentation; but the evidence under this plea, must be confined to the fraud of the obligee in relation to the execution of the bond.</p>

The judgment of the Circuit Court, in this case, was affirmed at the last term. See the opinion', ante, p. 153. The defendant in error then filed a petition for a re-hearing, and 'the cause was continued. The Court, at the present term, overruled the petition.

<p>ERROR to the Pike Circuit Court. Butler was the plaintiff below, and Cummins the defendant.</p>

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

<p>A feme covert may, by statute, join with her husband in the execution of a convoyance of real estate; but she cannot bo bound by any of the covenants contained in the conveyance.</p>

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

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

<p>A warrant of attorney to confess judgment cannot lie expressly revoked,</p> <p>A warrant of attorney authorised the confession of judgment at a certain term, for a certain sum, in an action of debt; and the judgment was confessed accordingly. Held, that the judgment was not erroneous, merely because the nature of the debt was not particularly described in the warrant.</p> <p>The defendant’s appearance to the action by attorney, prevents him from making any objection relative to the process.</p>

<p>Indictment against eight persons for an unlawful assembly. Five of the defendants appeared and pleaded not guilty; and two of these five were found guilty and three not guilty’. Held, that judgment should be entered against the two found guilty; but that they must have been discharged, had all the others indicted been tried and acquitted,</p>

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

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

Trimble was the plaintiff below and obtained a verdict and judgment, but being dissatisfied with the amount, sued out this writ of error.

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

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

In this action, Mary Ann Hagar, by John Hagar her father and next friend, was the plaintiff below, and Ambrose Shirley, the defendant. Yerdict and judgment for the plaintiff.

This suit was instituted by Henry Hurst' against Clement Powers and others, whose names are unknown, heirs of Walter E. Powers, who all are not residents of the state. ■

<p>A. gave his promissory note to JB. for an antecedent debt, and afterwards confessed a judgment, without any qualification, in favour of the payee for the amount of the note, and the interest then due on it. Held, that S. could not be relieved in chancery, from the interest charged on the note and included in the judgment, on the ground that, by a parol contract when the note was given, no interest was to be charged.</p>

<p>A judgment was confessed to defraud a creditor, on which an execution was issued, and a sale made of the debtor’s real estate — the purchaser having notice of the fraud.' On a bill filed by the creditor intended to be defrauded, (who, in the mean time, had obtained a judgment for his demand,) the proceedings were set aside.</p> <p>A decree pro confesso against a non-resident defendant, is not objectionable on . account of its having been taken on the first day of the term, — it appearing that the Court was satisfied, that due publication had been made agreeably . to the order of the Court.</p> <p>If the charges in the bill be sufficiently explicit, the complainant, after a .decree pro confesso, may have a final decree without the production of proof.</p>

The plaintiff suffered' a nonsuit in the Circuit Court, and a judgment was thereupon rendered'against him for costs de bonis propriis.

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

<p>A debtor to defraud hjs .creditors, conveyed his real estate to a person with notice of the fraud. Held, that a bong fide purchaser, for a valuable consideration, from the fraudulent grantee, — having paid the purchase-money, and received • a deed, before notice of the fraud, — will hold the estate against the creditors of the grantor. JLliter, if the purchaser from the fraudulent grantee had' notice of the fraud, before the payment of all the purchase-money., -</p> <p>The creditors of a deceased debtor, having obtained separate judgments against his administrator, may unite in a bill in chancery to .set aside the intestate’s fraudulent conveyance of real estate, and subject it to the payment, of their judgments. . . -</p>

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

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

<p>"A note payable to A., administrator of II., is due to A. in his own right; and he may sue on it without naming himself administrator.</p> <p>If, in such case, the suit-be in the name of A., administrator of. 13., the. words, “administrator of 13.” may be considered as surplusage.</p> <p>An appeal from the judgment of a. justice to the Circuit Court will be dismissed, if the transcript be not filed with the clerk, within twenty days after the filing ' of the appeal-bond,</p>

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

<p>A verdict in detinue was as follows: “We, the jury, find the property named in the declaration to be in the plaintiff and find the value thereof to be 60 dol- . lars.” Meld, that the. judgment should be an-ested, the verdict not ■ showing an unlawful detainer of the property.</p>

<p>APPEAL from the Harrison Circuit Court. Likens was' the plaintiff in the Circuit Court, and Mitchell the defendant. Verdict and judgment for the plaintiff.</p>

In'this case Denbo was the plaintiff, and Mitchell and others the defendants, in the Circuit Court. Verdict and judgment for the plaintiff.

Mounts was the plaintiff below, and Hagar and Hart the defendants. The suit was commenced before a justice of the peace, and was founded on a promissory note. The defendants pleaded specially. See ante, pi 57.'

<p>A tenant contracted to deliver, as rent, one-third of the com he should raise on the premises. Held, that the remedy by distress does not lie in such a case.</p>

<p>If the defendant; in. an action on a-note, rely on a plea of failure of consideration or of fraud, the onus probandi lies upon him.</p> <p>If the alleged fraud, in such case, he in the sale of á patent-right for which the note was given, the fraud must he proved as jn other cases. .</p>

<p>A physician may maintain an action for his fees.-</p> <p>If it appear in the record that the jury were sworn, the omission of-the words “the truth to speak in the premises,” cannot be assigned for error.</p>

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

<p>The statute of 1833, — enacting that no mispleading, or lack of pleading, should thereafter render any executor or administrator personally liable, — has no application to a judgment rendered previously to the statute.</p>

<p>Thé purchaser at sheriff’s sale of land, to which the'execution-debtor had no title, but which belonged at the time to the United-States, can recover from the debtor, in equity, the' amount of the purchase-money paid to the sheriff, . though no fraud in relation to the sale.be imputed to the debtor.</p>

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

<p>Courts of law and equity have concurrent jurisdiction, as to suits against heirs, executors, or administrators, for the debts of the decedent.</p> <p>Commissioners for the sale of real estate should report within a reasonable time; and the report should show the sum the estate sold for, the time when it was sold, and, the decree requiring it, that the rents and profits for «even years had been first offered for sale.</p>

<p>To an action of slander for charging the plaintiff with stealing hoys, it is not a good plea in bar, that the plaintiff had stolen one hoy.</p> <p>The defendant cannot prove, in such an action, that it was generally known in the neighborhood, that there had been a quarrel between the parties.</p> <p>The practice of swearing a jury as well to try the issue in fact, as to inquire of the damages on an issue in law previously found for the plaintiff, obtains only in cases where the decision of the issue in law entitles the plaintiff to damages, without regard to the trial of the issue in fact.</p>

<p>ERROR to the Rush Circuit Court. David was the plaintiff below, and Kent the defendant.</p>

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

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

<p>A. mortgaged, certain- goods to JB. ’ to secure the payment of a bona fide debt, but continued in possession of the goods -with the mortgagee’s, permission, and used and disposed of them as his own. The mortgage stated that the goods . were delivered to' the mortgagee in his own right, subject to be redeemed on the payment, &c. . Meld that, under these circumstances, the mortgage was fraudulent and void as to the mortgagor’s creditors.</p>

<p>The admissions made by a party, examined under oath on a trial before a justice, cannot be proved in the Circuit Court, on appeal, — the party being in Court, on the trial of the appeal, and not there examined.</p>

<p>Jl. leased to D. for a number of years a dwelling-house and two lots at a certain annual rent, and covenanted in the lease to make some additions to the buildings, and furnish some furniture for the house. - The tenant entered into and occupied the promises; and the landlord sued for two years’ rent. Held, that the landlord’s not having-made the additions, &e. as agreed on, was no bar to the action.</p>

<p>An unincorporated company must sue in their individual names, and not in the name of the firm.</p> <p>Semble, that a promissory note payable to a firm may be filed under the statute, instead of a formal declaration, if the writ contain the names of the partners.</p>

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

<p>An indictment for larceny, charging that the goods stolen wore the property of id., is not sustained by proof that they belonged to Jt. & JB, as partners, and that they-were, at the time of the larceny, in Jl.’s possession.</p>

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

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

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

<p>A note was given to a private association, for a debt due them, as follows: — “ I acknowledge myself indebted to the trustees of the Springborough school society In the sum of 28 dollars and 89 cents, which I promise to pay unto Jl. £., treasurer of said society,” &<?. Held, that a suit would not lie, on this note, in the name of the treasurer,</p>

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

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

<p>An indictment for a malicious trespass need not state the means used to effect the injury.</p>

<p>Under the statute of 1824, if money was lent at a higher rate of interest than 6per cent, per annum, no interest, at all could be recovered; and if, in such case, the usurious interest or a part of it had been paid, such payment was deducted from the principal, and the lender recovered the balance, without any calculation of interest (2).</p>

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

<p>In an action in the name of the state on the relation of Jl. against 21. and C., the judgment was as follows: — “It is therefore considered by the Court, that the said defendants go hence without day, and that he also recover his costs and charges in this behalf expended, and the plaintiff in mercy,” &c. 2Ield, that under the statute, the judgment should have been against the relator for , costs, and in favour of both the defendants, but that the mistakes as to these matters were merely clerical, and might have been amended at any time.</p>

<p>A plea to an action of assumpsit, that the defendant had paid the plaintiff the several sums in the declaration mentioned, with. all interest due thereon, according to the form and effect of the promises in the declaration mentioned, in goods, wares, and merchandize, and money,---cannot be supported either as a plea of accord and satisfaction, or of payment, or of set-off unde£ the statute.</p> <p>A plea to such an action, that the contract between the parties, if any was made, was under seal, may be objected to on motion, or by special demurrer.</p> <p>An agreement under seal cannot be rescinded by a parol contract.</p> <p>The terms of a sealed agreement cannot be varied by a.subsequent parol contract, so as to authorise a suit on the sealed agreement, which Suit, without the parol contract, could not be sustained; and, consequently, the existence of the sealed agreement, in such a case, is no bar to á suit on the parol contract.</p> <p>Erroneous instructions to the jury cannot be assigned for error, if they were not applicable to the case, and could not injure the party complaining of them.</p>

<p>If the condition of a bond in domestic attachment, recite that the plaintiff had sued out the attachment, &c., parol evidence is not admissible to prove, that the bond was executed before the issuing of the writ; but if the writ itself show that it issued after the execution of the bond, the recital to the contrary in the condition of the bond, will be no ground for quashing the writ.</p>

<p>A scire facias cannot issue, either at common law or by statute, against a sheriff or constable for an escape.</p> <p>An execution-creditor, in order to recover against the sheriff or constable for an escape, must aver and prove the existence of a judgment against the execution-debtor.</p> <p>The pleadings before justices of the peace cannot be objected to for want of form; aliter, as to substantial defects.</p>

<p>Leave to amend a defence, on an appeal from a justice of the peace, will not be' granted by the Circuit Court, if the nature of the proposed defence he different from that relied on before the justice.</p>

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

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

<p>It is not necessary, in an action on a bond conditioned for the performance of an award, that a plea in bar admitting the execution of the bond but denying that any award had been made, should be verified by affidavit.</p> <p>A plea in such case, — averring the bond to be void by the statute of another state where it was executed, — should set forth particularly the statute relied on.</p>

<p>A sheriff, by virtue of an execution on which about 20 dollars were due, sold 100 acres of land belonging to the exécution-defendant, worth from 1,000 to 2,000 dollars, when four or five acres, which might have been conveniently taken from one side of the tract, could have been sold for a sufficient sum to satisfy the execution. Held, on a bill filed by the execution-debtor, that the sale was fraudulent and void.</p>

<p>Debt on a collectors bond. Breaches assigned, that the collector had failed to pay over to the treasurer of the county the taxes assessed thereon, or to account to him for the same, in the manner provided by law. Held, on special demurrer, that the breaches were insufficient.</p>

<p>The Circuit Court has no jurisdiction in the case of an appeal from the judgment of a justice, unless- the transcript be filed in the clerk’s office, within twenty days after the appeal-bond is filed.</p>

<p>In an action of slander by a husband and wife, the declaration must not conclude to the damage of the wife only, but to the damage of the husband and wife.</p>

<p>The refusing to give, instructions to the jury, unless the record show them to be relevant to the issue, cannot be assigned for error.</p> <p>A new trial will not be granted to a plaintiff, on the affidavit of a witness that he had forgotten, until after the trial, to mention a material fact invalidating one of the pleas.</p>

<p>If a bond, payable “to the trustees or their successors in office,” be the property of a congressional township, the suit on it.must be in the corporate name of the township,</p>

<p>To an action on a promissory note, the defendant pleaded in bar as to part of the amount, that the consideration of that part was goods sold and delivered at a sound price, as good and saleable goods, which goods were damaged and of little or no value. Held, that the plea — containing no averment either of fraud or warranty — was insuiliciont,</p>

<p>A suit for the benefit of the hoard of trustees of a county seminary will not lie against their predecessor in office, for the money in his hands collected in the county of persons conscientiously scrupulous of bearing arms, as an equivalent for militia .duty — the seminary not being entitled to the money.</p>

<p>Though, a person who has had quiet possession of an estate for three years, and whose interest remains undetermined, is protected by statute from the action of forcible entry and detainer, — yet the declaration in this action need not deny the existence of such a possession or the continuance of the estate.</p> <p>An appellate Court must presume, the record showing nothing to the contrary, that the evidence in the Court below was sufficient to authorise the judgment,</p> <p>The circumstance, that the forcible entry and detainer complained of, appears by the declaration to have been committed beyond the time limited by the statute, is no cause for arresting or reversing the judgment for the plaintiff.</p> <p>A conveyance of the real estate of an intestate.by his administrator, and by his widow as the guardian of his children, is not valid, unless the grantors had some special authority for making it.</p> <p>In 'an action of forcible entry and detainer, the verdict for the plaintiff in the Circuit Court, on appeal, must be signed by all the jurors, .</p>

<p>The parties to a reference agreed on -the day for the meeting of the arbitrators, ■ and met with the arbitrators on that day, when the examination was commenced and adjourned until the next day, When the award was made. Held, that the party dissatisfied with the award, could not object to it on account of his not having had a written notice of the time of the meeting of the arbitrators. ' Held, also, that such party having, by an endorsement on the arbitration-bond, agreed that a change should be made as to one of the arbitrators, could not afterwards object to the award in consequence of its being made in conformity with that agreement. ■ ,</p> <p>An award cannot be objected to, because the submission and award were not recorded, before .the granting of the rule to show cause why the award should not be made the judgment of the Court, nor because ten days’ "notice of the rule had not been given, — if the rule was entered by the consent of the parties.</p> <p>The record of the judgment on an award, need not show that the arbitrators Were sworn, nor that the arbitration-bond was proved, nor that the witnesses were sworn, nor that the award was proved: an appellate Court will presume, the record not showing the contrary, that the law as to these matters was complied with.</p> <p>Quiere, whether the arbitrators, appointed under the act for the regulation of arbitrations in the Circuit Court, should be sworn!</p> <p>If the objection to an award, on account of its not having been made or returned in due time, be not made in the Court below, — it cannot be noticed "by an appellate Court.</p> <p>The arbitrators should state in their award, the costs of the witnesses examined before them, and the amount due for their own services.</p> <p>An award as to the costs should distinctly show whether or not it applies to the costs in the Circuit Court;</p>

DEBT on three promissory notes dated in August, 1821: the' first payable two years, after dáte, the second three years after date, and the third four years after date..

<p>The declaration described the note correctly and concluded as follows: — “And although the said sum of money specified in the said note hath, according to the tenor and effect thereof, lone since been due and payable, nevertheless, the said de- ° A J ' * fendants, though often requested, &c. have not paid the same or any part thereof to the plaintiffs, but have hitherto wholly neglected and refused to pay the same. Wherefore, &c. Damage 300 dollars.”</p>

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

<p>In an action on a promissory note brought by an assignee, the declaration should state the assignment to be made on the, note 'under the hand of the assignor.</p>

<p>The statute o£ 1833, dispensing with a declaratión in certain' cases, does not apply to an action on a note under seal for the payment of money.</p>

<p>The plaintiff may recover, in trespass for an assault and battery, on proof of as assault, without any evidence of special damage,</p>

<p>Words charging the plaintiff as postmaster, with taking money out of a letter put into the office by the defendant, and appropriating it to his own use, with keeping and embezzling letters, &c. are actionable.</p> <p>Such slanderous words, assuming that the plaintiff possessed the character in which he was defamed, operate as an admission, and sxe prima facie evidence of the fact.</p> <p>Though the declaration in this case not only stated that the plaintiff was a postmaster, appointed and commissioned by the postmaster general, but also that he had given bond and been sworn into office, — it was held that his character of postmaster, if evidence of it could be required, was sufficiently established by proof of his commission, and of his acting in that capacity.</p>

<p>Whenever, in a suit commenced before a justice of .the peace, it appears from the pleadings, or evidence, or agreement of the parties, that the title to real estate will come in question, — the suit must be dismissed for want of jurisdiction.</p>

The only question submitted for the consideration of the Court in this case, was, Whether the title to real estate came in question? If it did, the parties admitted that, under the statute of 1831, the magistrate had no jurisdiction of the cause, and that the judgment below should be reversed..

<p>If the possession of property be fraudulently obtained from a bailee by the general owner, the bailee may maintain trover for the property against either the owner or his subsequent vendee.</p>

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

<p>If a declaration on a bond for the prison limits set out the condition of the bond, it must aver the existence of the judgment and execution under which the bond was given.</p>

BASIL BROWN and George W. L. White were partners in a certain business, and dissolved their partnership in February, 1833.

<p>If a promissory note, executed by a partner in the name of the firm, be for his individual debt, which is known to the payee, — it is not binding on the partnership.</p> <p>A subsequent promise to pay such a note by the partner not bound by it, is within the statute of frauds, and does not bind him.</p> <p>The admissions of a partner, made after a dissolution of the partnership, and not relating to the previous business of the firm, are not admissible as evidence to charge the other partners.</p> <p>A promissory note, executed by a partner in the name of the firm, — he having previously retired from the partnership, and that fact being known to the payee, — does not bind the other partners.</p> <p>Itis error in the Court to refuse to givea particular- instruction to the jury, if, in law, the party is entitled to it.</p>

<p>Partners may be liable for goods purchased for them by their agent, although the agent, at the time of the contract, mention the name of only one of his principals.</p>

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

<p>The right to a continuance of a suit in 'chancery until the next term after the issue is completed is not given by the statute unless depositions are to be taken. On a bill to foreclose a mortgage, all the mortgaged premises may be ordered to be sold.</p> <p>A mortgage, given to secure the payment of a certain debt by instalments, contained an agreement that on default in the payment of any one instalment, the whole debt should be then payable, subject to a deduction of interest from the payment of the money, to the time when it was to have been paid had no default occurred. Held, that on the non-payment of any instalment when due, a bill of foreclosure might be filed. Held, also, that the liability to pay the whole debt, upon any such default, could not be considered as a penalty.</p>

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

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

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

Henderson filed a hill in chancery against Town and others The material allegations in the bill are as follows: — The complainant, in January, 1832, leased his… Held: in 3 Yes. 70, of the silver tobacco box belonging to a club, and some others, and in Virginia, of slaves, are examples of such interference afforded by the books, and show that in those cases the remedy at law was incomplete. Those cases rest upon their own peculiar grounds and do not affect the rule laid down.

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

<p>In an action by a sheriff for the purchase-money of land sold by him on execution, the judgment and proceedings on which the execution issued, must be averred in the declaration and proved on the trial.</p> <p>In such an action, the sheriff’s return to the execution must be stated in the declaration.</p> <p>Sheriffs’ sales of real estate are within the statute of frauds.</p>

SLANDER. The declaration stated, that on, &c. at Brook-ville, &c. a dwelling-house, the property of Enoch M’Carly, was consumed by fire; and that the defendant, in a discourse concerning the said fire, spoke these words: — “I (the defendant meaning) believe that Charles M’JVeál (the plaintiff meaning) had the bouse (meaning the said dwelling-house) set on fire intentionally; and the circumstances attending the case are sufficient to prove it:” — thereby alluding to .the said…

<p>I. That on the 30th of August,- 1826, Spiller caused a fieri facias to be issued by R. Meek, a justice of the peace, and suecessor in office of J. Goodhue, late a justice of the peace, which execution was issued by Meek (who had by succession and delivery Goodhue’s docket, and sufficient authority for the purpose) on a judgment rendered by Goodhue on the 27th of November, 1822, in favour of Spiller against French for, &c.; that the execution was directed to Campbell, as constable, and placed in his hands to be served; that Campbell did not execute the writ, though French had sufficient goods, &c., but refused to levy, &c.; whereby, &c. 2. That Campbell, by virtue of such another execution so issued, levied on a horse of French’s, &c., but refused to sell him, and permitted French to take him away, &c. 3. That Campbell, by virtue of such another execution so issued, levied on a horse, &c., and falsely returned that the horse was rescued, See., and that there was no other property, &c. 4. That Campbell having received such another execution so issued, neglected and refused to make any return of the same, &c. 5; That Campbell, by virtue' of such another execution so issued on a judgment, See., which had been transferred from the docket of justice Goodhue to that of justice Meek, levied on a horse, See., and falsely returned that the horse was rescued, &c.</p>

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

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

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

<p>In an action against a board of county commissioners, for work and labour, or goods sold and delivered, the declaration must show some act, creating their liability, to have been done by them at a regular meeting of the board at the time fixed by law.</p>

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

<p>An administrator may, under the statute, file a bill in chancery, instead of proceeding at law, against any person who intermeddles with or embezzles any of the goods, &c. of the intestate.</p> <p>A decree, in such a case, against two defendants for a certain sum, stated that they should be jointly and severally liable for the same. Held, that the words “jointly and severally,” &c. were merely surplusage, and did not render the decree objectionable.</p>