Volume 3 — Indiana Reports

<p>A writ of scire facias to revive a judgment stated tlie time of the rendition of the judgment, that execution remained to be done, and com-^ manded the sheriff to summon the defendant to answer why the plaintiffs should not have execution. Held, that the writ averred, substantially, that the judgment remained unsatisfiéd.</p> <p>Where the Circuit Court before which, and the time at which, a party is summoned to appear, are specified in the writ, he cannot object that the place where the Court was to be held was not sufficiently indicated.</p> <p>The suggestion of the death of one of two defendants to a scire faoias to revive a judgment, is equivalent to a dismissal as to such defendant.</p> <p>A writ of scire facias to revive a judgment may be amended, under the R. S. 1843, at any time before judgment, by striking out the name of one of several defendants.</p> <p>The R. S. 1843 authorize the issuing of a scire facias to revive a judgment against the personal representatives of a deceased defendant.</p>

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

THE motion to which the following remarks of judge Smith are applicable, was decided at the last term of the Court, and the opinion of the Court may be found in 2 Carter’s Ind. R. 670. Judge Smith, who granted the order extending the operation of the appeal, to discharge which order was the object of said motion, proceeded, on the first day of the present term, to read the following remarks :

<p>A reward was offered, by Franklin county, for tbe apprehension and delivery to the sheriff of said county, of one E., who was charged with the crime of murder. One M. thereupon went to New Orleans in pursuit of E., and arrested him and brought him back to the vicinity of said county. Here, by the negligence of Hi., E. escaped. On the morning afterwards, Hf., with others in his employ, watched a house where E. was supposed to be secreted, but did not find him. On the next morning, Hi. called on one P., related to him the circumstances of his journey, his expenses, the arrest of E. and his escape, and requested the aid of P. to re-take E., and promised P. to compensate him if he, P., should arrest him. P. agreed to watch at said house for E., take him if he should come there, and give Hf. notice of the arrest. P. said Hf. ought to have the reward. Meanwhile, Hf. continued his search for E. in the vicinity. P. arrested E. at said house, on the day after the conversation with Hi., concealed from Hf. the fact, delivered E. to the sheriff of said county, and obtained the reward. In assumpsit by Hf. against P. to recover the reward, held, that P. was merely the servant of Hf. to make the arrest, and that the latter was entitled to the reward. Held, also, that no demand of the reward from P. was necessary before suit.</p> <p>No plea of set-off, or notice of set-off, was filed in this cause. Held, that it would not have been competent, therefore, for the jury to have allowed P. compensation for making the arrest.</p> <p>An opinion expressed by a witness, inconsistent with facts testified to by him, cannot be given in evidence to impeach his testimony.</p> <p>A party employed merely to aid in making an arrest, has no implied authority to engage others, at his employer’s expense, to assist.</p> <p>A conviction of petit larceny does not render a person incompetent as a witness.-</p>

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

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

<p>The admission of illegal evidence, or Uie giving of erroneous instructions to the jury, cannot be assigned for error, unless such evidence or instructions are shown by a bill of exceptions.</p>

<p>Sections 98 and 99, of chapter 46, of the R. S. of 1843, in relation to opening decrees, do not apply to suits for a divorce.</p>

<p>In an action against principal and surety upon a promissory note, evidence was adduced by the defendant, tending to show that, at the time appointed for the payment of the note, the principal offered to pay the same, and that the payee, without receiving the money or surrendering the note, made an oral agreement with the principal for a new loan of the money, upon the sole responsibility of the latter; but the Court instructed the jury that the evidence constituted no defense to the action.</p> <p>.Held, that the instruction of the Court was erroneous.</p>

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

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

<p>ERROR to the Tippecanoe Court of Common Pleas.</p>

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

<p>A surety, who has discharged a judgment rendered against him for a debt of his principal, by executing a note not negotiable by the law-merchant, and a mortgage, for the amount of the judgment, cannot sue his principal for money paid until he has paid the note and mortgage, or a part thereof.</p>

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

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

<p>A bill of exchange was drawn, payable at Cincinnati, but tbe parties thereto were all residents of this state. Held, that the bill was within the meaning of the statute, which allows damages, upon the usual protest for non-payment, on bills drawn on persons without the jurisdiction of the state.</p> <p>A bill of exchange was sold to the State Bank, the plaintiff, at her branch in Lawrenceburgh, by two of the parties, who were partners, for their own benefit, the plaintiff knowing the bill to be an accommodation bill. The greater part of this bill was paid, just before it became due, by the sale of another to the plaintiff, and the application of the proceeds to the payment of the first. When the second became due, it was paid by the sale of another to the plaintiff, of like amount, and the application of the proceeds in like manner. This process of paying each pi eceding bill by another of like amount, continued through a series of bills, and up to the non-payment of that on which this suit was brought; and each bill, after the first, was purchased with the understanding that the proceeds were to be applied to the payment of the preceding one. The bills all varied in respect to the parties — there being some to each bill who were not parties to the others. Bach was made payable in four months from the time of the sale thereof to the plaintiff, at Cincinnati, but the parties were all residents of this state. The plaintiff, when she purchased the bills respectively, charged and received interest thereon at the rate of 6 per cent, per annum and three-fourths of 1 per cent, exchange. The cost of transporting specie between Lawrenceburgh and Cincinnati, did not exceed, during all this time, 2 dollars upon the thousand. At the time these several bills were sold to the plaintiff, there was a standing rule of said branch, that no note should be discounted having more than ninety days to run. Held, that the transactions recited did not show a device of the plaintiff to exact usuiy.</p>

<p>To a declaration upon the common counts for work and labor, the defendant pleaded as follows: 1. That the causes of action did not accrue within five years, &c. 2. That the defendant did not, at any time within five years, ¿sc., undertake and promise, in manner and. form, &c. Held, that the pleas were identical.</p> <p>The proviso in the 11th section of the act of 1838 regulating the practice in suits at law, which enacts that, if in any of the actions or suits enumerated in that section, judgment be given for the plaintiff and afterwards reversed for error, a new action may be commenced within a year after such reversal, applies to suils in chancery as well as to actions at law.</p> <p>A party who has applied to chancery for relief and obtained a decree, when his remedy was exclusively at law, may, under said proviso, at any time within a year after the reversal of such decree for error, prosecute his action, for the same matter, at law.</p> <p>Where one has entered into a special agreement to perform work for another, and furnish materials, and has done work and furnished materials, but not in the manner stipulated by the contract; or where he has voluntarily abandoned the work before its completion; yet if the work done and the materials furnished are accepted and used by the other party, the latter is answerable to the amount whereby he is benefited, upon an implied promise to pay for the value he has received.</p> <p>But such amount cannot exceed the price which would have been allowed, under the contract, for the same amount of work, or quantity of materials, had the contract been fulfilled.</p> <p>The mode of ascertaining the real benefit received from the part performance of work, in cases like the present, is to estimate the whole work at the price fixed by the contract, and to deduct from that the amount requisite to complete the part of the work left unfinished. If any loss is occasioned by the unfinished part costing more in proportion than the whole was undertaken for, the loss must be borne by the party who originally contracted to do the whole. The amount to be allowed may, in some cases, be less than the proportion which the work done would bear to the cost of the whole, but cannot exceed it.</p> <p>It seems that the defendant may, in an action of this kind, reduce the amount to be recovered by showing that he sustained special damage by reason of the non-performance of the contract by the plaintiif, or he may waive the recoupment of such damages and bring a cross action to recover them.</p> <p>Where an entire job of work was to be done under a special contract, and the compensation was to be, on its completion, the conveyance of a lot of ground, and the workman, having done a part of the work, abandoned the contract, but the party for whom the work was done received and retained the benefit thereof, it was held,, that the value of the lot was to be considered as representing the compensation the workman was to receive, and from it should be deducted the amount necessary to make up the deficiencies of the other party in the completion of the contract.</p> <p>Where a building is in process of construction under a special contract, and additions or alterations are made, the original contract, unless it has been so entirely abandoned that it is impossible to trace it and to say to what part of the work it is applicable, is held still to exist, and to be binding on the parties as far as it can be followed.</p> <p>Interest is allowable, under the statute, for a vexatious delay of payment for work.</p> <p>Where work is done and materials furnished in continuation of an entire job, if one of several items is within the period of the statute of limitations, the statute does not bar the recovery upon any.</p>

<p>An opinion expressed by a witness, inconsistent with a fact testified to by him, cannot be given in evidence to impeach his credit.</p> <p>In an examination to impeach the credit of a witness by proof of his general bad character, the inquiry must be limited to his character at the time of the examination.</p>

<p>Where a party has sold and delivered chattels, or performed labor for another, under a sx>ecial contract which he has failed to complete, and such part performance has been a benefit to the party receiving it, which benefit he has retained after the expiration of the time for completing the contract, an action on the quantum valebat or quantum meruit may be supported for the chattels delivei-ed or the work done.</p> <p>In such a case, the defendant may prove, by way of recoupment, Whatever damages he has sustained by reason of the non-fuliillment of the special contract; or he may resort to a cross action to recover them.</p>

<p>The taking of a judgment against one of two partners upon a partnership debt, discharges the other, at law, from the debt.</p> <p>Where the partner thus discharged, being ignorant of the fact that such a judgment had been rendered, and confiding in the representations of the creditor that none had been, executed his note to the creditor for the debt, it was held, that a suit could not be maintained upon the note.</p>

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

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

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

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

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

<p>ERROR to the Tippecanoe Court of Common Pleas.</p>

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

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

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

<p>•After the transcript of a record has been filed in the Supreme Court, the Court below may correct a clerical error in the record, and upon the correction being properly certified to the Supreme Court, it will become part of the record of the latter Court.</p> <p>The measure of damages for the violation of a simple contract, where vindictive damages are not authorized, is the amount necessary to have put the party injured in as good a condition when the contract was broken as if he had not made the contract.</p> <p>Exceptions to the admissibility of evidence will not be regarded by the Supreme Court, in a civil action, unless they appear, by the record, to have been taken before the jury retired to deliberate upon their verdict.</p> <p>Exceptions to the instructions of the Court to the jury, will not be noticed in the Supreme Court, unless they appear, by the record, to have been taken before the jury delivered their verdict.</p>

<p>A-justice of the peace, not being the successor of another justice, but having the docket of the latter in his possession during a vacancy or absence, cannot grant an appeal from a judgment on such docket, and certify a transcript in the case, until he has previously transferred the judgment to his own docket.</p> <p>A justice’s certificate to a transcrijrt given upon an appeal, showed that he was not the justice who rendered the judgment, but that the same was in his custody till a successor to the justice who did render the judgment, should be elected, and it did not show that the judgment had been</p> <p>' transferred to his own docket. Held, that the dismissal of the appeal upon motion, in the Circuit Court, was right.</p> <p>If this defect in the certificate had not been sufficient to justify the Court in dismissing the appeal, the refusal of the Circuit Court to admit evidence that the judgment had not been so transferred, would have been error.</p> <p>Suit against an administrator and his sureties, before a justice of the peace. The demand stated that the plaintiff was the widow of the intestate, and entitled, under the statute, to certain personal property of the estate, which property she had demanded of the administrator. That statement was filed, with a copy of the administration-bond, as the cause of action. Held, that, under the R. S. 1843, the cause of action was sufficient.</p>

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

<p>A. B. recovered a judgment in the Lagrange Circuit Court against C. D., and in the vacation of the Court immediately following, one E. F. acknowledged himself replevin-bail for the stay of execution thereon, as follows: “A. B. v. C. D. — Comes now E. F. and acknowledges himself replevin-bail and security for the payment of the above judgment, at the expiration of the time allowed by law for the stay of execution. (Signed) E. F.” This entry was entitled in the same manner as the judgment, but several entries intervened on the order-book between it and the entry of judgment. E. F., over five years after he had executed the recognizance, moved to set it aside as void. Held, that the recognizance was, substantially, in the form required by the statute. Held, also, that after the lapse of time mentioned, the circumstance that the recognizance was not written immediately under the entry of judgment, furnished no sufficient ground for setting it aside.</p>

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

<p>To support an indictment against a defendant for knowingly suffering bis horse to be run in what is commonly called a horse-race, along a public highway, it is not necessary to prove that a bet or wager was made, or a distance to be run agreed upon, or that judges were appointed to decide upon the result of the race.</p> <p>Upon the trial of such an indictment, evidence that the race was run along a road leading from one specified town to another in. the county, &c., is sufficient, prima facie, to sustain the averment that the road in qrrestion was a public highway.</p>

<p>A contract, under the R. S. 1843, for the maintenance of the poor, imposes upon the party contracting to maintain them, a personal trust which he cannot assign.</p> <p>An agreement by him to assign the contract is void as against public policy.</p>

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

<p>A lease of land contained an agreement that the lessee should pay a specified rent, at periods stated, and should he, at any time during the term, neglect or refuse to pay the rent when due, he thereby authorized the lessor to re-enter upon and take possession of the premises, without hindrance. Held, that to work a forfeiture of the lease for the non-payment of rent, a demand of the rent should have been made on the premises, just before sun-set of the day when it became due.</p> <p>On this point, the It. S. 1843 have not changed the common law.</p> <p>The lease contained a covenant that no wheat, ¿sc., or other article, used or growing on the premises, should be taken off until the full amount of the rent coming to the lessor had been paid. Held, that a breach of this covenant did not work a forfeiture of the lease.</p> <p>It is not error for the Court to refuse to give an irrelevant instruction to the j«y-</p>

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

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

<p>To an action brought upon a judgment rendered in another state, the defendant may show, by evidence dehors the record, that he was not within the jurisdiction of the Court at any time between the commencement of the action and the recovery of the judgment; and that an attorney who undertook to appear for him, had no authority to do so.</p> <p>The Court has no right to exclude' such evidence because the deposition containing it contains also evidence tending to prove that the judgment was rendered upon a partnership-debt, and that the defendant’s partner employed the attorney on behalf of, and that judgment was rendered against, the firm.</p>

<p>A son being the owner of the undivided half of a tract of land, purchased for his father the other half, the latter furnishing the means, but took the deed in his own name; it being understood that the father would, in a short time, remove from Ohio to the land, when they would divide the tract to suit them. The father did remove to the land, the division was made, and the father took possession of his half; but no deed was executed to him. Afterwards, the son having paid certain money for the father, it was agreed between them in writing, in consideration thereof, that the title to the father’s share of the land should remain in the son, and that the father and his wife should have the privilege of occupying the same during their lives. Held, that the trust-estate of the father was extinguished by the execution of the said writing.</p>

<p>Trespass guare clausum fregit. Pleas — 1. Tlie general issue; 2. Liberum tenementum; 3 and 4. leave and license for a special purpose; 5. leave ■ and license generally. Replication to the second plea, De injuria; to the third and fourth, That the defendant committed unnecessary damage; to the fifth, De injuria. Rejoinder to replication to third and fourth pleas, that the defendant committed no unnecessary damage, &c. Verdict for tlie plaintiff on the issue raised by the third and fourth pleas, and for the defendant on that raised by the fifth plea. Judgment for the defendant. Held, that the judgment was right.</p> <p>The plaintiff will not be allowed, after verdict, to amend his replication, or to file an additional one.</p>

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

<p>Where a mechanic undertakes to do a job of work for a specific sum, within a time appointed by contract, and, having done a part, fails to complete the rest within the time appointed, by reason of which the employer is compelled to hire another to complete it, the employer has the right, if the hire of the mechanic last employed exceeds the price agreed upon by the contract for the same work, to deduct such excess from the amount due, according to the contract price, to the first mechanic, for the work actually done by him.</p> <p>The employer has also the right, if the work done under the contract was executed in an unworkmanlike manner, to have the amount which it was worth less than if done in a workmanlike manner, deducted from the con- ■ tract price for the same work.</p> <p>The employer has also a right, upon suit brought by the first mechanic for the work done by him, to show (at least, if he has pleaded or given notice of the defense,) other special damages which he has sustained by the plaintiff’s breach of the contract.</p> <p>If the work has been done in an unworkmanlike manner, but no damages have resulted from its non-completion at the time appointed, and the expense of finishing it has not exceeded the contract price for the same work, the plaintiff should recover the reasonable value of the work done by him, according to its quality, not exceeding the contract price'for the same.</p> <p>If an employer, upon his own judgment, furnishes a mechanic defective materials for a job, and directs them to be used at all events, he cannot afterwards object that the work, on account of the defectiveness of the materials, is of an inferior quality.</p>

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

<p>A justice of the peace has no authority to render a judgment bearing move than, legal interest, even by the consent of the parties.</p> <p>A judgment was rendered by a justice of the peace, while the statute of 1838 was in force, by the consent of the defendant, bearing 10 per cent. interest. Held, that this was not a valid contract under that statute for the payment of that rate of interest.</p> <p>Where one of several defendants in such a judgment has paid 10 per cent. interest thereon, he is a proper party to sue for the excess paid over the legal rate.</p> <p>In assumpsit against the judgment-plaintiff to recover an excess of interest received by him on the judgment over the legal rate, he pleaded to the declaration that he did not take and receive the same, nor did he promise, Ac., within one year previous to the commencement of the suit. Upon this plea, the plaintiff took issue. Held, that the action not having been brought under the provisions of the statute, to recover the whole of the interest paid as illegal, the issue raised was an immaterial one.</p> <p>An action for money had and received lies at common law to recover back an excess of interest paid over that established by statute.</p>

<p>A son-in-law, living with the parents of liis wife, cannot recover for occasional services performed in that capacity, without proof of an express contract that they were to he paid for.</p>

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

<p>ERROR to the Tippecanoe Court of Common Pleas.</p>

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

<p>An indictment for murder in the first degree, was found in the Decatur Circuit Court at the April term, 1851, and concluded contra formam statuti. By the statute of 1843, the punishment of that crime was death. By the act of 1846, the punishment is either death or imprisonment in the state prison at hard labor during life, at the discretion of the jury. Held, that the conclusion of the indictment in the singular, to-wit, contra formam statuti, was correct.</p> <p>At the term of said Court in which the indictment was found, the defendant moved the Court for a change of venue. The Court granted the motion, and entered, on the Court docket, an order for the change of venue to the Ripley Circuit Court; but the clerk neglected to enter the order on the order-book. A transcript of the proceedings in the cause in the Decatur Circuit Court, except said order on the Court-docket, was made out by the clerk of that Court and duly certified by him under the seal of the Court. That transcript, with the indictment and other papers in the cause, was, on the 22d of July, 1851, delivered to the clerk of the Ripley Circuit Court, who, on the day last named, filed the same in his office. After the motion for the change of venue was made, several witnesses were recognized in the Decatur Circuit Court to give evidence, in the Ripley Circuit Court, in the cause, and their recognizances were recorded on the 22d of July, 1851, in the Ripley Circuit Court. On the 23d of September, 1851, the clerk of the Decatur Circuit Court filed in the clerk's office of the Ripley Circuit Court, as one of the papers in the cause, a certified statement of the order for a change of venue, as entered as aforesaid on the Court-docket of the Decatur Circuit Court. After-wards, on the day last named, the parties appeared in the Ripley Circuit Court, and the Court, on the defendant's motion, continued the cause until the 29th of September, 1851. The defendant then objected to the jurisdiction of the Ripley Circuit Court, on the ground that there had been no order, by the Decatur Circuit Court, for a change of venue. Held, that the objection was correctly overruled.</p> <p>The affidavits of individual jurors are not, on grounds of public policy, admissible to impeach their own verdict.</p>

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

<p>The State Bank, through her branch at Lawrenceburgh, purchased a bill of exchange drawn at Lawrenceburgh, payable at the Lafayette bank of Cincinnati. The bill was sent by said branch to said Lafayette bank, for collection, and it was protested on the 11th day of August, 1849, when it became due, for non-payment. On Sunday the 12th or Monday the 13th of that month, the cashier of said branch, received from the notary, through the post-office, a letter containing notices of the protest,' addressed to the drawer and indorsers severally. On the same day, the teller of said branch mailed the notice to the indorser, Pate, in a letter directed to him at his residence. There was no evidence that the branch had endorsed the bill to the Lafayette bank. Held,, that the course pursued by the notaiy in inclosing the notices to the several parties to said branch, was in accordance with a practice sanctioned by the Supreme Court of Ohio, and was sufficient.' Held, also, that the notice was mailed by the notary in due time.</p>

<p>Application by the widow of one S., an intestate, against the White Water Valley Canal Company, for the assessment of damages occasioned by the construction of their canal through a lot claimed by her. It was proved, on the hearing, that the intestate, at his decease, was the owner of the property; that he was born and raised in New Jersey; that he and the plaintiff were married, and lived on the property sixteen years, until 1838, when he died, leaving her in possession of the premises, where she remained until the trial in 1845; and that the intestate had no children, as far as was known. A witness also testified that he had known, and lived in the same town with, the intestate, for the last sixteen years before his death, and knew of no relatives or heirs of the intestate, except the plaintiff. Held, that the evidence showed, prima facie, that the plaintiff was the sole heir of the intestate, under the R. S. 1843.</p>

<p>In a suit upon a promissory note by the assignee against the maker, the latter may plead, under the R. S. 1843, by way of set-off, an individual account which he had against any assignor prior to notice of the assignment.</p> <p>"Where the account against the assignor is larger than the amount of the note, the plaintiff cannot, by releasing the assignor from liability upon the assignment, render him 'a competent witness.</p>

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

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

<p>In a suit upon a note given for the transfer of an interest in a patent, the questions whether a fraud was practiced or a warranty made at the time of the transfer, and, if either was done, what was the value of the right transferred, are for the decision of the jury; and their verdict will not be set aside where it is not clearly shown to be unauthorized by the evidence.</p>

<p>A. residing in Jackson county, and B. in Clark county, were sued in assumpsit in the Jackson Circuit Court. Each was served with process in the county where he resided. The plaintiff, afterward, by leave of the Court, amended his writ and declaration by striking out the name of A. B. was then called and defaulted, and a jury was impanneled, which assessed the damages against him. The assessment was set aside, and, on the plaintiff's motion, another jury was called and a new assessment made, and judgment was rendered thereon. Held, that the leave to amend was properly granted. Held, also, that A. and B., wlien served with process, were brought within the jurisdiction of the Court, and that the dismissal of the suit as to A. did not divest the jurisdiction over B., the record not disclosing that A. could not have been legally included in the judgment. Held, also, that the setting aside of the first assessment of damages and the awarding of another venire must be presumed, the record not showing the contrary, to be right.</p>

<p>Indictment against C. for keeping a public nuisance. The offense was charged as follows: That said C., late, áre., on, &c , at, &c., in and upon a public street within the limits of the town of R., in said county, did then and there unlawfully, on said street, erect, continue, and maintain, on other days and times thenceforward, for the space of three months then next following, by then and there, in the public street aforesaid, in the limits of the town aforesaid, in the county aforesaid, on the days and times aforesaid, in the public view of the inhabitants of said town and other citizens of the state of Indiana who were wont and accustomed to pass and repass on, in, and through said street, erecting, keeping, and letting to mares a certain stallion which he, the said C., did then and there unlawfully keep and let to mares, &o. Held, that the indictment sufficiently showed that C. had not provided an inclosure in which his stallion was let to mares; and, though negligently drawn, substantially described the offense.</p>

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

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

<p>Irrelevant instructions, or harmless erroneous instructions, given to the jury, furnish no ground for reversing a judgment.</p>

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

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

<p>In debt upon a bond, tbe plea of nil debet is bad upon general demurrer.</p>

<p>In a suit by an infant before a justice of the peace, the naming of a person as next friend, in the summons, may be considered as an appointment of the person as next friend.</p> <p>A defendant who was sued by an infant before a justice of the peace, appeared to the suit before the justice, Went to trial on the merits, and suffered judgment to be rendered against him, without making the objection that the next friend of the infant had not consented in writing to his appointment. The cause was appealed to the Circuit Court, where the defendant moved to dismiss the suit for the want of such written consent of the next friend; but the Circuit Court was not informed, by affidavit or otherwise, that the defendant did not know of the omission complained of, whilst the suit was pending before the justice. Held, that the Circuit Court correctly refused to dismiss the suit.</p>

<p>Where the declaration consists of a special and a common count, and the evidence received at the trial is admissible under the common count, the judgment for the plaintiff will not be reversed because the special count is bad.</p> <p>Where the general issue and special pleas are filed to the action, and the defense set up in the special pleas is admissible under the general issue, the judgment for the plaintiff will not be reversed because a demurrer to the special pleas was erroneously sustained, if no injury appears to have been done.</p> <p>If an administrator undertakes, in writing, to pay a debt of the intestate when assets shall come to his hands, he may be sued on the undertaking, after the receipt of such assets, in his individual capacity, and the judgment against him will be de bonis propriis.</p>

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

<p>After the jury has been impanneled and the evidence heard, the plaintiff may, under the B. S. 1843, amend his writ and declaration by striking therefrom the names of any number of the defendants.</p> <p>The notice of the protest for non-payment of a note payable at the branch at Lawrenccburgh of the state bank, stated that the note was presented, &c., “in the bank,” for payment, &c. Held, that the words imported that the note was presented within banking hours.</p> <p>The holder of a note payable at a chartered bank within this .state, may, upon the note being protested for non-payment, notify all, or any part,</p> <p>‘ of the indorsers of the fact, and render the indorsers thus notified liable for the payment of the note.</p> <p>An indorser who has received due notice of the protest for non-payment of such a note, held by a bank, will not be discharged because a prior indorser was not thus notified, notwithstanding it was a usage of the bank to notify all indorsers of paper not paid at maturity, of protest.</p>

<p>A. purchased of B., in 1838, a tract of land, paid a part of the purchase-money in hand, and was to pay the residue by discharging an outstanding note of B. to a third person, when A. should sell the land. A. sold the land, omitted to pay the note, and concealed from B., who had removed to another state, the fact of the non-payment, and suppressed information thereof. Judgment having been recovered against B. upon the note, he brought this suit, in 1849, against A.’s executor, upon the following common counts: 1. Pori money had and received by the testator, dic.; 2. Por land bargained and sold to the testator, &c.; 3. Por interest for the forbearance of moneys loaned to the testator, &c.; and 4. Upon an account stated. The facts above recited were the substance of the evidence. Held, that there was no proof of any of the causes of action alleged in the declaration. Held, also, that the non payment of the note could not properly be proved under any of the counts.</p>

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

<p>The answer put in to a bill requiring an answer without oath, cannot operate as evidence for the defendant.</p> <p>ERROR to the Union Circuit Court.</p>

<p>The corporate authorities of a city are not liable for an injury to private property caused by the erection, on a public street or road within the limits of the city, over a small stream, of a culvert and embankment which have proved insufficient to resist an extraordinary flood, if the culvert and embankment had proved sufficient for all purposes for about three years, and ordinarily careful and thoughtful men, and engineers of usual skill, would not have contemplated that such extraordinary flood would ever occur.</p> <p>The degree of care and foresight which it is necessary to use in cases of this description, is that which a discreet and cautious man would or ought to use, if the risk and loss were to be exclusively his own; and it should be in proportion to the nature and magnitude of the injury likely to follow from its omission.</p>

<p>APPEAL from an order of injunction granted by the judge of the Laporte Circuit Court, at his chambers, in vacation.</p>

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

<p>Debt on the official bond of a justice of the peace. Breach, the non-payment of money collected by the justice to the party entitled. Plea, a former recovery. It appeared, on the trial, that in the former suit pleaded, which was on the same bond and between the same parties, the plaintiff obtained judgment for several sums of money which had been collected by the justice and not paid over; but that two of the sums collected by the justice and not paid over by him, had been omitted, by mistake, in taking the former judgment. This suit was brought to recover those two sums. Held, that the former recovery was not a bar to the present suit.</p>

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

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

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

<p>The 15th section of the charter of the Lawrenceburgh and Upper Mississippi Railroad Company does not preclude the company from prosecuting a writ of error to the Supreme Court from an award of damages for land taken by the company in the construction of their road, although that section states that the judgment of the Circuit Court shall be final.</p>

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

<p>Tlie Supreme Court cannot say that the Circuit Court erred in overruling a motion for a continuance, when the affidavit, on which the motion was founded, refers to another affidavit as containing the facts relied upon for the continuance, which latter affidavit, though made in the same cause, is not a part of the record.</p>

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

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

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

<p>A plaintiff cannot recover upon a special count for the non-performance of a written agreement, if the evidence shows that he failed to fulfill his part of the agreement.</p> <p>A defendant, sued upon a parol contract, may prove, by way of recoupment, any damages he has sustained by the breach of the contract by the plaintiff, if he has pleaded or given notice of such defense. Instructions given to the jury cannot be objected to in the Supreme Court, unless they were excepted to in the Court below.</p>

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

<p>A husband who comes into possession of money held by his wife in trust, whether as her administrator, or otherwise, is held as a trustee, and may be compelled, in chancery, to account for it.</p>

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

<p>ERROR to the Vanderburgh Circuit Court. ’</p>

<p>A. executed a written order directed to B. requesting him to pay C. a sum specified, when B. should collect that amount for A. Held, that the order was prima facie an acknowledgment that the sum specified was due from A. to G.</p> <p>Such an order is assignable, under the E. S. 1843, and can be made the foundation of an action.</p> <p>The order being, in legal effect, a written acknowledgment of a debt due from A. to C., will take the debt out of the operation of the statute of limitations upon unwritten contracts; and a plea, in a suit brought upon the order, that the defendant did not undertake, &c„ within six years before the commencement of the suit, is bad.</p> <p>Assumpsit by C., the payee, against A. upon a written order drawn by A. upon B. for the payment to C. of a specified sum when B. should collect the same for A. The declaration alleged, generally, a presentment of the order to the executor of B,, and his refusal of acceptance and payment, and that B. died before it was presented to him; but did not show when the order was presented for acceptance and payment, nor that notice of the non-acceptance and non-payment had been given; but it averred that, before the presentment, A. had withdrawn his funds from B.’s hands, that none ever came into the hands of his executor, and that A. suffered no loss by the delay of presentment and the want of notice. Held, that the declaration was good.</p>

<p>The Madison Insurance Company rejected, the claim of'the assured for the loss of the cargo of a flat-boat, and proposed to hirn-to leave'the.matter to arbitration. The proposition was accepted in wilting; whereupon the board of directors entered upon the boohs of the company a.request to the assured to join the secretary of the'eompany in selecting the arbitrators, designating the matter to be referred.. ’ The secretary and- the assured accordingly selected the' arbitrators, and the secretary executed a bond in the terms prescribed by the E. S. 1843, and signed, the name and annexed th’e corporate seal o‘f the company theretp. Held, that the arbitration intended was the statutory one provided by the R. S. 1843. Held, also, that the secretary was empowered by the board to execute and annex the seal of the company'to the-bond. Held, also,‘that-the submission was a valid one.</p> <p>A clause in the charter of the company provided that the business of the company might be carried on without the presence of the board of directors, by the president and secretary, subject to the by-laws, rules, ordinances, and regulations established by the board of directors. Held, that the board of directors having made the submission to arbitration, the president and secretary had no authority, under that clause, to revoke the submission.</p> <p>The award was, that the company should forthwith pay to the assured (naming him) the sum of 750 dollars and 74 cents, and that the same should be received in full satisfaction and discharge of his claim against the company, and that the company should pay the costs. Held, that the award was sufficiently certain.</p> <p>When a party has been represented by his attorney at an arbitration, he cannot afterwards object that notice of the meeting of the arbitrators was not given to him.</p> <p>The matter submitted to arbitration was, “whether said company was liable to pay the assured the damage done to the flour and meal, or either, on board of said flat-boat, and the amount.” The company, at the hearing, applied, upon the affidavit of her agent, for a continuance on account of the absence of three witnesses whose testimony, it was alleged, would tend to show that the damage was less than what the other witnesses had sworn. The arbitrators refused to adjourn the hearing, but proposed to hear the cause, with the exception of the evidence of those witnesses, and adjourn for a reasonable time, to be named by the company’s attorney or agent, in order to procure the attendance and testimony of those witnesses; but the company refused a continuance on those terms. Held, that the conduct of the arbitrators, in this respect, could not be complained of.</p> <p>A rule was granted by the Circuit Court upon the company to show cause why judgment should not be rendered on the award of the arbitrators. The company appeared, and filed her reasons, not alleging, as a defense, the want of notice of the award. Held, that the notice was thereby admitted.</p>

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

<p>In a suit brought by a corporation, a plea that, at the commencement of the suit, there was no such corporation in existence as the plaintiffs, is substantially good.</p> <p>A declaration against one of several makers of a joint and several promissory note, need not notice that the other makers executed the note.</p>

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

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

<p>ERROR to the judgment of Hon. Alvin P. Hovey in Vanderburgh county.</p>

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

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

<p>It is immaterial whether the motion to suppress a deposition was correctly overruled or not, if the deposition was not read at the trial.</p> <p>The party who, after an order for a change of venue, appears by attorney and submits the cause to a jury in the Court which granted the order, waives the right to remove the cause under the order previously made.</p>

<p>Bill, 'under the R. S. 1843, to revise a decree for alimony, on the ground of its inadequacy for the support of the complainant and an infant daughter. The bill showed that the divorce was granted upon the complainant's petition, though for no fault of the husband; that the alimony decreed was in exact conformity to her request at the time of the divorce; and that she was permitted to retain, in addition, all the property she had brought to the husband, and some 300 dollars' worth of other property, which appeared to have been a liberal allowance. It did not al- ' lege that the husband had refused to make further allowances for the support of the complainant and child, but stated that the further allowances made by him were small in amount and accompanied by inadmissible conditions, without stating ihe amount or conditions. Held, that a demurrer to the bill was correctly sustained.</p>

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

<p>The record of the proceedings in a suit in chancery pending by writ of error in the Supreme Court, being alleged to be defective, the latter Court awarded a certiorari to the clerk of the Circuit Court to certify a complete transcript of the proceedings. The Circuit Court, after the term had expired at which the decree, which was upon default, was made, and after the certiorari had been issued, ordered the clerk to copy the subpoenas and returns into the record, it having been shown to the Court that, when the default was taken, proof of the service of the subpoenas had been duly made. Held, that it was competent for the Court to make the order.</p> <p>The sheriff’s return to a subpoena in chancery showed that one of the defendants (naming him) had been “served,” and that the others were “not found,” &c. Held, that the language must be inferred to import that the service upon the defendant alleged to have been “ served,” was a personal one.</p> <p>Where a written instrument contains all the facts of a contract, except such as may be proved by parol, it is sufficiently certain to be enforced.</p> <p>The language of an agreement was as follows: I have this day sold my lot to A. B. on the plat in the town of South Bend — on the plat of said town on the river-bank. I have received value and will malte the deed as soon as convenient. August 11, 1835. (Signed) G. D. Held, that parol evidence was admissible to identify the particular lot intended to be conveyed, and that the contract was, therefore, sufficiently certain to be the foundation of a bill for specific performance.</p> <p>When a bill in chancery is against adult residents of the state, who are personally served with notice, and the allegations of the bill are certain— especially if the subject matter of the allegations is of a certain and definite nature — a final decree, after a decree pro confesso upon a default, may be made without proof.</p> <p>The assignment of a written contract for the sale of land, under the B S. 1843, carried with it the legal title to the instrument, and upon a suit by the assignee for a specific performance, the assignor is not a necessary party.</p>

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

<p>To affect a person with notice of a fact by communications made to one alleged to have been bis agent, tlie agency of the latter must first be proved.</p> <p>While the law was, that, where evidence was objected to, the grounds of the objections should be stated, objections were made without assigning the reasons. Held, that they were correctly overruled.</p> <p>An attorney at law to whom a claim has been sent for collection, and who has obtained a judgment thereon, cannot, without special authority, receive, by way of compromise, notes of third persons in satisfaction of the judgment.</p> <p>A judgment may be discharged by the receipt of assigned notes of a less amount than the judgment in satisfaction thereof.</p>

<p>In ejectment, the defendant cannot prove that a deed professing to convey a specific number of acres, was intended to convey more.</p>

<p>Where, at the time of making a contract for the sale of land, the vendor has fraudulently misrepresented Ihe quantity, a Court of equity, upon the application of the vendee, will rescind the contract.</p> <p>Such vendor cannot, by afterwards purchasing and tendering to the vendee a conveyance for an adjoining quantity sufficient to make up the deficiency, deprive the latter of the right to rescind the contract.</p>

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

<p>In an action for the breach of a promise of marriage, the plaintiff may prove by parol that letters passed between the parties, without producing the letters.</p> <p>Instructions to the jury should not assume that facts recapitulated in them have been proved.</p> <p>The plaintiff’s attorneys in the present cause having been improperly allowed to argue to the jury that the fact of the defendant’s having procured a change of venue was a circumstance which should weigh against him, the defendant asked the Court to instruct the jury that they had nothing to do with that fact, and that it could not properly prejudice the defendant or his cause. Held,, that the instruction should have been given.</p> <p>Case for the breach of a promise of marriage. Pleas, 1. The general issue; 2. That when the promise was made the defendant was an infant. Replication to this plea, that the defendant ratified the promise after attaining to majority, and issue thereon. After the evidence was heard, the defendant asked the Court to instruct the jury that, if the defendant was an infant when the plaintiff assumed that the promise was made, to find him guilty they must find that the promise was made while he was under age, or they could not inquire as to what he had said or done, after he became of age, that might look like a ratification of the contract. Held, that the instruction was properly refused.</p> <p>Where there is evidence before the jury tending to establish a fact, it is the duty of the Court, where a specific instruction, correct in point of law, is asked for in relation to the fact, to give it.</p>

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

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

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

<p>Suits upon the official bonds of public officers are •within the provisions of ss. 5 and 10 of c. 47 of the R. S. 1843.</p> <p>Debt upon the official bond of a justice of the peace. Damages assessed at 14 dollars and judgment for the plaintiff accordingly, and against the relator for costs. There appearing to have been no reduction by way. of set-off, held, that the judgment against the relator for costs was right.</p> <p>When a judgment has been rendered for the plaintiff, he cannot complain that a demuirer to a plea was overruled, which, if valid at all, was a bar to the whole action.</p>

<p>Itl a suit upon a promissory note, a guarantor of the solvency of the maker is not a competent witness to prove that the note was executed without a consideration.</p>

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

<p>The clerk of a Circuit Court has no right to receive payment of a judgment otherwise than in gold and silver, without the authority of the owner of the judgment.</p> <p>An offer by a creditor to his debtor to accept a thing in payment of the debt upon a condition which is not assented to by the debtor nor waived by the creditor, does not amount to an acceptance.</p> <p>The agent of a judgment-debtor, residing in Jennings county, sent to the creditor at Madison, notes of the state bank and treasury notes to be received at par in payment of the judgment, but no direction was given as to what should be done with the notes in case of the creditor’s refusal thus to accept them. The latter refused to accept them at par, and promptly notified the agent of the non-acceptance, requesting- further directions, but retained them for about two months, and then returned them. Held, that the delay could not be construed to imply an acceptance of the notes in payment of the judgment.</p> <p>APPEAL from the Jennings Circuit Court.</p>

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

<p>Where land has been appraised and sold at sheriff’s sale subject to alleged incumbrances which had actually been discharged before the purchase, the purchaser cannot be compelled to take the land at the sum of the price bid and the amount of such supposed incumbrances.</p> <p>A sheriff’s return that he has executed a deed of land to a bidder, does not conclude the latter from showing the contrary.</p>

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

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

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

<p>The statute which enacts that no holder of a bill of exchange shall be permitted, at any term of the Circuit Court, to institute more than one suit upon such bill, prohibits the institution of separate suits on such bill at the same term, but not at different terms, of the Court.</p> <p>It is not material on error whether a deposition read by the plaintiff at . the trial should have been suppressed or not, if the evidence was amply sufficient without it to sustain the suit.</p> <p>The protest of a bill was written and signed on the day that payment was refused, but the notaiy did not affix his seal until several months' after-wards, but before the trial of the suit against the indorser. Held, that the protest was completed in time.</p> <p>A. being indebted to tbe plaintiff in a certain sum, the latter, in order to obtain payment, purchased of him, at a fair price, a bill drawn payable at a bank in New Orleans, and applied the proceeds, with his consent, to such payment, having reason to believe when the bill was bought that it would be paid at New Orleans when it should become due. Held, that the transaction was not a loan, but a fair purchase of a bill of exchange.</p> <p>Where a verdict against a party would still have been right, although evidence offered by him and rejected had been admitted, he cannot complain of the rejection of the evidence.</p> <p>The statute of 1843, which declares usurious contracts valid as to the principal debt, applies as well to loans made by the state bank as to those made by individuals.</p> <p>A verdict will not be set aside on error on account of erroneous instructions given to the jury, if it is apparent from the evidence that the verdict, notwithstanding, was right.</p>

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

<p>Bill by the administrator of L. against C. to restrain the collection of a judgment at law and for a decree for a new trial of the issues. The bill alleged that the suit at law was assumpsit for work and labor, commenced by C. against L. in his lifetime, and that C. obtained judgment, &c.; that at the trial the Court improperly refused to admit certain evidence offered by L. to prove the value of the work; that C. was permitted to give evidence which ought to have been rejected; that the jury disregarded certain evidence of payment offered by L. and rendered judgment for C. though nothing was due him; and that the Court refused a new trial. It was also alleged that bills of exception were taken to all these proceedings, and upon an appeal to the Supreme Court, the judgment was affirmed. Held, that a demurrer to the bill was correctly sustained.</p>

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

<p>A judgment rendered on a new trial will not be reversed because the new trial was granted upon insufficient grounds, if the adverse party has admitted before the Court below the truth of a material part of the evidence to admit which the new trial was granted.</p> <p>The fact that such admission was made to prevent a continuance, makes no diiference.</p> <p>’Where the evidence given at the trial is not in the record, it will be presumed that the judgment was in accordance with it.</p>

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

<p>Where notes are given to secure the purchase-money of land, payable respectively on or before a given day, under a contract that a deed is to be executed for the land on the payment of the notes, a suit cannot be maintained on either of the notes after the last has become due, unless a deed was tendered on or before the day when the last note matured.</p>

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

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

<p>A special plea of set-off which professes to answer the whole declaration, but answers only a part, is bad on general demurrer.</p>

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

<p>A justice of the peace has no jurisdiction of a cause where his brother-in-law is the plaintiff; and a judgment for the plaintiff in such a case is coram non judice and void.</p> <p>The plaintiff who causes an execution to be issued on such a judgment and the justice who issues it being thus related, are liable in trespass cte bonis asportatis to the party whose goods are sold under the execution.</p>

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

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

<p>An indictment for retailing spirituous liquor, charged that the liquor was sold to a person whose name was unknown to the grand jurors. One witness only was examined at the trial, and he testified to whom the liquor was sold, that he was a witness before the grand jury when the indictment was found, and that he then knew the name of the person to whom the liquor was sold, and would have disclosed the name to the grand jury if they had inquired what it was. Held, that as the grand jury, upon proper inquiry of the witness, could have ascertained the name, the indictment could not be sustained.</p>

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

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

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

<p>Debt by tbe assignee of promissoiy notes against tbe mater.' Plea, that after the assignment, be bad paid the notes to the payee, with tbe assent of tbe plaintiff, in goods, <fec. Issue on tbe plea. Held, that general evidence of tbe delivery of goods, &e., by tbe defendant to tbe payee after the assignment, was admissible to go to tbe jury.</p> <p>In a suit by the assignee of a note against tbe maker, tbe latter may plead and prove that the plaintiff bolds tbe note merely as a trustee of tbe payee, in order to let in as a set-off an indebtedness of tbe amtor to tbe defendant.</p>

<p>A bill of exchange drawn payable at the Ohio Life Insurance and Trust Company, Cincinnati, was described in a count in the declaration against the acceptors as payable generally. Held, that there was a variance.</p> <p>When a bill is made payable at a particular place, a general acceptance is, in legal effect, an acceptance to pay at the place designated in the bill.</p> <p>A count in a declaration against the acceptors of a bill of exchange described the bill as drawn payable generally, and as accepted to be paid at the Ohio Life Insurance and Trust Company, Cincinnati. The bill offered in evidence, which corresponded with that described in other respects, was drawn payable at said Ohio Life Insurance and Trust Company, Cincinnati, but accepted generally. Held, that the variance might have been obviated, by amendment, under the R. S. 1843, at the trial, but it not having been done, the Supreme Court was bound to make the amendment, or regard it as made, and treat the bill as given in evidence under said count.</p> <p>A judgment of the Circuit Court will not be reversed for an erroneous ruling of the Court, when the party complaining has not been injured thereby.</p>

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

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

<p>APPEAL from an interlocutory order of the judge of the Marion Circuit Court granting an injunction.</p>

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

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

<p>Where the plaintiff sues in debt, assumpsit, or covenant, in the Circuit Court, for more than 50 dollars, and proves on the trial a right, prima facie, to recover more than 50 dollars, but owing to the defendant’s evidence of matters of set-off or of other matters of reduction, the judgment for the plaintiff is only for 50 dollars or for less, the plaintiff, under the R. S. 1843, is entitled to costs.</p> <p>Where the evidence is not contained in the record, the Court mil presume that the facts proved were such as to authorize the judgment.</p>

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

<p>Where the subject-matter of a bill against husband and wife relates to the inheritance of the wife, a decree against both upon the answer of the husband on behalf of himself and the wife confessing the bill, is erroneous.</p> <p>It is error to render a decree by default, in such a case, against a married woman.</p>

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

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

<p>The course of the descent of an estate to the heirs at law can only be in terruptedby a devise to some other person, whatever may have been the intention of the ancestor.</p>

<p>Section 121 of the general road law of 1849, which provides a remedy by action of debt at the suit of the supervisor for the obstructing of a public highway, does not take away the remedy by indictment authorized by s. 65, c. 53, R. S. 1843, for the same oifense, but furnishes a cumulative remedy.</p>

<p>A person who has executed to a constable a bond for the delivery of property levied upon execution, will be estopped, in trespass against the officer for the seizure of the property, from denying that the judgment and execution were against himself, if the bond was procured without fraud.</p> <p>Such a bond will not be held to have been fraudulently procured, from the fact of previous misrepresentations by the constable of the obligor’s liability thereon, and its not being read, or explained to him, it not appearing that the obligor was an illiterate person or that he had not the means in his power of knowing the truth.</p>

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

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

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

<p>ERROR to the Tippecanoe Court of Common Pleas.</p>

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

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

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

<p>The clause in the charter of the town of Lafayette which makes it the duty of the marshal to suppress all riots, disorders, disturbances, and breaches of the peace, and with or without process to apprehend all disorderly persons or disturbers of the peace and convey them before a justice, &c., does not authorize the marshal to arrest an offender, without process, for a breach of the peace, after the offense has been committed and the disturbance has ceased.</p> <p>The marshal who makes the arrest, and persons who, under his command, assist Mm, under sucli circumstances, are liable in trespass to tlie party arrested.</p>

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

<p>Section 115 of chapter 53 of the K.. S. 1843, is void as being contrary to the constitution of the United States.</p> <p>It is error to convict a person under that section.</p>

<p>The shave of the pavt owner of a steam-boat which runs on the Ohio and Mississippi rivers, and occasionally touches at the city of New Albany in the course of her voyages, is not liable to be taxed, under the charter of said city, merely from the fact that such part owner is a citizen of that place.</p> <p>The situs of personal property, for the purposes of taxation, does not follow the domicil of the owner.</p>

<p>A declaration founded on a written instrument, though the instrument is without a date, should allege a day, month, and year, as the time of its execution; and if the allegation is omitted, the declaration is bad on special demurrer.</p> <p>An agreement by A. to discharge the balance of a judgment due to B. upon B.’s delivering to him a wagon at a time specified, is a sufficient consideration to support a promise by B. so to deliver it.</p>

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

<p>Debt upon a promissory note for 70 dollars. The defendants pleaded, that the plaintiff had previously purchased a printing-office and fixtures of A. and B. at a price specified, and had given them a mortgage to secure the purchase-money; that on the same day the plaintiff sold the printing-office, <fec., to the defendants for 70 dollars, and took their note therefor, being that sued on, and that the defendants were to have the privilege of purchasing the claim of A. and B. upon such terms as they could, and if they should make the purchase so as to release the plaintiff from any liability to A. and B., the defendants were to have the ownership upon paying the plaintiff the amount specified in said note, but if they should not make the purchase, they were to pay said sum of 70 dollars for the- use of the property a year, during which time the plaintiff agreed to assure the possession of it. The plea then averred that the defendants had purchased the claim of A. and B and procured the plaintiff's release from all claims of A. and B. for the purchase-money, whereby they became invested with the entire property in the printing-office, dsc., and so the consideration of the note had failed. Held,, that the facts showed no failure of consideration, and that the plea was bad.</p>

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

<p>A post mortem examination made by a physician at the request of the coroner is not a service covered by the physician’s employment to attend upon the county poor.</p> <p>A physician is not entitled to any greater compensation for traveling to and giving evidence at a coroner’s inquest, in obedience to a subpcena, than any other witness.</p> <p>The expenditure of labor and skill by the physician in a post mortem examination will, however, entitle him to additional compensation.</p> <p>The coroner may, where a post mortem examination is necessary, employ a physician to make the examination and the county will be liable for the expense.</p> <p>The board of commissioners of a county have jurisdiction of the claim of a physician for services rendered in a post mortem examination made at the request of the coroner, and the judgment rendered by the board on tlie claim, if brought before them according to the statute, is, while unreversed, conclusive.</p> <p>To give the board jurisdiction of the claim, it is not necessary that it should be brought before them like a formal suit at law.</p>

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

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

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

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

<p>A county agent is not a quasi corporation.</p> <p>A note was executed to G., agent of Wells county, or his successor in office, &c. Held, that G.’s successor could not sue, in his own name, upon the note.</p> <p>To a suit brought upon a promissory note given to a county agent, the defendant set up in bar of payment that it was given for a part of the purchase-money of a county-seat lot; that the agent sold the lot to the defendant for 100 dollars, of which sum he paid, at the time, 40 dollars, and executed his notes, that in suit being one, for the remaining 60 dollars; that said agent kept the 40 dollars, reported the sale to the county commissioners as having been made at 60 dollars, which report was accepted; and that the defendant had already paid with the said 40 dollars the amount of 60 dollars, at which sum the lot was reported as having been sold. Held, that these facts were no defense against the note.</p>

<p>To constitute a corporation under the general plank-road law of 1849, there must be — 1. Articles of association setting forth the name of the corporation, the route and termini of the road, and the amount and number of shares of capital stock; and 2. An actual subscription of 1,500 dollars of stock per mile to said articles, subscribed with the names and places of residence of those who make the subscription; and 3. A filing of copies of said articles in the office of the recorder of each county into which the road extends.</p> <p>A valid corporation may exist and a binding subscription of stock be made, under said law, before the appointment of directors; but the subscriptions cannot be collected till directors have been appointed — at least, except as to an amount to be paid at the time of subscribing to defray preliminary expenses, according to the articles or by-laws of the association.</p> <p>The directors may properly be elected before the articles of association are filed in the recorder’s office.</p> <p>Semble, that if the directors were illegally elected, that could not be set up in resistance to the payment of stock-subscriptions, but would be a case for a quo warranto to oust the directors.</p>

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

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

Dye sold a judgment to Smoot, received a certain amount in payment, and required Smoot, in addition to said amount, to pay a certain fee claimed by Jeremiah Smith. Smoot agreed to pay said fee to Smith. Failing to do it with sufficient promptness, Smith sued him in his (Smith's) name, in assumpsit, for said fee, and recovered below.

<p>The refusal of the Circuit Court to give to the jury an instruction asked for, when the Court gave in its stead an equivalent one, is not a ground for reversing the judgment.</p> <p>In an action of slander the Court instructed the jury, in 'effect, that if the words charged were spoken under excitement, and afterwards taken back, that fact should be considered in mitigation of damages; but if they were thus spoken and afterwards persisted in, it should not be so considered. The Court afterwards added, that if the charge was made under excitement it might be considered in mitigation. Held, that the instruction, thus modified, could not be complained of by the defendant.</p>

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

<p>The rule that objections to evidence should bo shown by the bill of exceptions, refers to cases in which the testimony has been admitted, and not to those in whieh it has been rejected.</p>

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

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

<p>Bill in chancery by a replevin-bail to enjoin the proceedings upon an execution issued on the judgment and levied upon his property, on the ground that a prior execution issued on the judgment had been levied on property of the principal, a bond for the delivery of the property forfeited, and a judgment recovered against the principal and surety on the bond upon which an execution had been issued and a part of the judgment collected but not credited. Held, that the remedy, if any, was by a motion to set aside the execution.</p>

<p>In ejectment to recover the possession of land sold to the plaintiff’s lessor upon execution, he was permitted by the Court at the trial to amend the executions upon which the land was sold to him. The record did not show what the amendments were. Held, that it must be presumed they were such as might properly have been allowed.</p> <p>Clerical mistakes made in the issuing of an execution may be amended by the judgment.</p> <p>A sale to an execution-plaintiff will be avoided by the reversal of the judgment as respects the costs of the suit.</p>

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

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

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

<p>Debt upon an appeal-bond. The condition of the bond was as follows: That whereas M. had, on the da.y of executing the bond, obtained an appeal from the judgment of the Hendricks Circuit Court on said day rendered against him in a case wherein John Doe, on the demise, <&c., was plaintiff, and said M. was defendant; now should said M. duly prosecute his said appeal and pay any judgment or costs which might be rendered or affirmed against him, then the bond was to be void. The first breach assigned was, that said ill. did not duly prosecute his appealfrom the judgment of said Court in said suit, &c., against him, according to the condition of said bond, but therein wholly failed. Held, that the breach was bad. The second breach, after alleging, as in the first, that the appeal had not been duly prosecuted, averred that the appeal was dismissed by the Supreme Court on, <fcc., whereby the plaintiff was kept out of the occupation of 160 acres of land, the rent of which was worth, &a. Held, that the plaintiff’s claim for rents and profits was not provided for by the condition of the bond, and that the breach was bad. The third breach, after alleging, as in the first, that the appeal-bond had not been duly prosecuted, averred that the appellant liad not paid the judgment and costs which were adjudged against him on, &c., by the Supreme Court for - dollars and-cents, according to the condition of said bond, but therein wholly failed, to the jilaintiff’s damage, &a. Held, that, were there no other objection to the breach than its omitting to state the amount of said judgment, this omission would show it to be insufficient.</p>

<p>A count in an indictment on the statute relative to lotteries was substantially as follows: That the defendant, on, áse., at, (fee., unlawfully made a certain lottery for a division of property to be determined by chance, the making of which not being authorized by law, contrary to the statute. Held, that the indictment was bad, after judgment, for not stating the species of property.</p> <p>It is a general rule that whatever is essential to the gravamen of the indictment must be set out particularly.</p>

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

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

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

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

<p>"Where a woman, being the payee and holder of a sealed note, marries, the property of the note is in the husband, and he alone, and not the wife, can negotiate and pass it by indorsement.</p> <p>When the assignment of the note is signed by the husband, the wife's signature to the assignment is mere surplusage.</p> <p>In a declaration upon a note, the allegation of the non-payment of the note or any part thereof, is a sufficient breach.</p>

<p>Special count in assumpsit on the following instrument: Received of X E. the sum of 100 dollars paid in land. Held, that the receipt did not of itself show a contract implying a consideration. Held, also, that it did not of itself show a sufficient consideration for the alleged promise to pay X E. 100 dollars on request. Held, also, that the instrument was so ambiguous on its face that no definite meaning could be given to it.</p> <p>A bad plea is sufficient for' a bad count.</p> <p>Where a plea is a good defense to all the legal causes of action described in the declaration, a demurrer to it should be overruled.</p>

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

<p>Á. sold to B. nine cribs of corn, at 20 cents a bushel, with a warranty that they contained 2,500 bushels, and an agreement that, if they did not, A. would supply the deficiency. The sum to be paid for the 2,500 bushels was agreed on, and time given for the payment; and the cribs of com were left with A., as B.’s agent, to be taken care of for B. Held, that, as between A. and B., the sale was complete. Held, also, that B. had no ■lien on the com. Held, also, that, supposing there was not such a change of possession as is contemplated by s. 8, c. 33, R. S. 1843, yet even as between B. and a subsequent bona fide purchaser from A., the sale to B. was valid.</p>

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

<p>Bill by husband against wife for a divorce, on tbe ground of abandonment by tlie wife. It was proved, at the hearing, that a separation had taken place, and the wife had afterwards said she did not intend to live again with the husband; but it did not appear which party had abandoned the other. Held, that the bill was properly dismissed.</p>

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

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

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

<p>An indictment, under the R. S. 1843, was as follows: The grand-jurors impanneled, ¿so., upon their oath, present that A. B., on, ¿so., at the county, áse., aforesaid, and continuously from that day until the day of the finding of this bill of indictment, had and possessed a house, a room, a shed, and a tenement, situate in said county, and that said B. there, during all the time aforesaid, did keep and suffer his said house, room, shed, and tenement, to be used and occupied for gaming, contrary, áte. Held, that the indictment was good. Held, also, that to sustain the indictment, it was sufficient to prove that the defendant kept either of the places specified, for any length of time, to be used, ¿so., for gaming.</p> <p>To sustain the indictment, it is not essential to prove that the gaming actually took place at the house, but the commission of the offense may be inferred from circumstances.</p>

<p>Indictment, under the R. S. 1843, against A. B., containing two counts. The second, after the usual introduction, charged that the said A. B., on, <fec., at and in the county aforesaid, [the county of P.,] did then and there knowingly keep and suffer his house in which he kept his grocery to be used and occupied for the purpose of gaming at and with cards for money and other valuable articles; contrary, &o. Held, that the indictment was sufficient.</p> <p>It is error to quash an indictment containing a good count.</p>

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

<p>An indictment for retailing spirituous liquor, charged the sale to have been made by A. and B. to C. The evidence showed that A. and B. had each sold spirituous liquor by retail to C„ at different times, at the same bar and in the same house, but no joint sale was shown, nor that either participated in the act of the other. Held, that the indictment was not sustained.</p>

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

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

<p>ERROR to the Jackson Court of Common Pleas.</p>