Volume 4 — Blackford's Indiana Reports

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

<p>The deposition of a prosecuting attorney of one of the Circuits was taken, under the statute, to be read in evidence on the trial of a cause in another Circuit, if the witness should not be able to attend. Held, that the circumstance that the official duties of the witness, at the time of the trial, required his attendance at a different place from that of the trial, was prima fade sufficient to authorise the admission of the deposition.</p>

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

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

<p>Trespass for breaking and entering the plaintiff’s closo and stable, and taking away two horses. Plea, that an execution of fieri facias against a third person was delivered to the sheriff, &c.; that the horses belonged to the execution-debtor and were subject to the execution; that the sheriff, by virtue of the execution, and the defendants by his command, broke and entered into the close and stable and took the horses, &c. Replication, that the horses did not belong to the execution-debtor, but to the plaintiff. Held, on general demurrer, that the replication was sufficient.</p>

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

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

<p>An exocution was levied on certain goods found in the possession of the execution-debtor. A third person claimod tna goods under a mortgage, which had been previously executed to him in good faith by the execution-debtor, to secure the payment by a given time of a just debt. Nothing was said in the mortgage as to which of the parties should have possession of the goods. Altne time.lha mortgage was executed, the goods were delivered to the mortgagee and were left by him with the execution-debtor, in whose possession they remained until tho time of the levy.</p> <p>Held, on a trial of the right of property, that tho mo-tgagor’s possession of tho goods was not conclusive evidence of fraud as to creditors; but that his possession might be explained by parol evidence, and shown to be fair and consistent with the contract.</p>

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

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

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

<p>An indictment against a person for selling spirituous liquors to an Indian, cannot be objected to merely because the name of the Indian is not inserted, if the indictment state that the name is unknown to tho jurors.</p>

<p>If an unincorporated company sue in the name of the firm, the suit will be dismissed on motion.</p> <p>When a suit is properly brought by the persons composing the firm of </2. & Co., and a note payable to the firm is filed as tho cause of action, tho plaintiffs should enter a suggestion on record, that tho promise was made to the plaintiffs by the name of Jl. & Co.</p>

A bill in chancery was filed, in the Union Circuit Court, by Benjamin and Hannah M’Lean against James Irving. The facts as shown by the bill, answer, and depositions, so far as concerns the opinion of the Court, are as follows:— John M’Lean, resident in the state of Pennsylvania, died there a few years ago intestate, being possessed of considerable personal property, and leaving the complainants his heirs at law.

<p>An administrator, in tho case of an appeal from a judgment against.his intestate, executed an appeal-bond. Tho appellee obtained a judgment on the appeal, to be levied of tho intestate’s goods. In an action on tho appeal-bond,, the defendant proved that the estate, at the timo of th3 judgment on appeal, was insolvent. Meld, that tho plaintiff could not recover.</p> <p>Qiasre, whether an administrator, who appeals from a judgment against his intestate, need execute an appeal-bond'; or whether such bond, if executed, be obligatory?</p>

<p>To debt on a promissory noto, the defendant may plead in general terms, that the nolo was made without any good or \alcable consideration whatever.</p> <p>A plea in such case, that the nolo was made in consideratiompf the sale and conveyance to the defendant of the right to uso, soil, &c. a certain patent right, which patent right was of no value,—is insufficient.</p> <p>So if the plea be, that the note was executed in consideration of the salo and conveyance to the defendant of ,a right to use, sell, &c. a certain patent right, which the payee represented to be useful and valuable, but which was in fact of no use or value,—it is not sufficient.</p> <p>But a pica in such case, that tho note was made in consideration of the sale and conveyance to tho defendant of a right to uso, soil, &,c. a certain palont right, which tho payee represented ho owned and had authority lo soil, when in fact he had no such ownership or authority,—is a good defence to tho suit.</p> <p>A replication to the last-mentioned plea, that tho note was executed for a good and valuable consideration^ without-fraud, &c,—is not sufficient on special de7 tnurrer.</p>

<p>The plaintiff in a justice’s Court has the benefit of the general issue though it be not pleaded, and though a special plea be filed.</p> <p>If goods be won on a wager respecting the result of a Presidential election, and be delivered to the winner, the loser cannot, either at common law or under our statute, sustain an action against the winner for the price of the goods.</p> <p>Such a wager is illegal, and if the goods be not delivered to the winner, he is without remedy.</p>

<p>, 1 A bill was filed to redeem certain premiáes which the complainant had caused to be absolutely conveyed to the defendant. The bill averred that the deed was intended to be only a mortgage; but this averment was expressly denied by the answer. Held, that though the complainant might introduce parol testimony to show that a mortgage was intended, yet that the testimony must be very clear and decisive to enable him to succeed. Held, also, that evidence of the grantee’s confessions, in such case, should be received With great caution.</p> <p>Proof that the property had cost the complainant about three times as much as he received for it from the defendant, and that the complainant had continued in possession for two years after the execution of the deed, washeld not to be sufficient to warrant a presumption that the sale was not absolute, against the face of the deed and the defendant’s answer.</p>

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

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

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

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

<p>The record, in the case of an indictment, need not show that the indictment was signed by the prosecuting attorney, nor that there was a foreman of the grand jury.</p> <p>In an indictment, a count charging a robbery from J.I. may be joined with a count charging an assault and battery with intent to rob «/Z.</p> <p>If an indictment for a felony contain several counts, and it be proved'to be the design of the prosecuting attorney to convict the defendant of separate felonies, the Court will compel him to elect upon which count he will rely. But the mere circumstance of there being several counts is not, of itself, sufficient to require such an election to be made.</p> <p>A petit juror, in a criminal case, being challenged, and examined on his voire dire, testified that he had formed and expressed an opinion as to the guilt of the defendant from report;' that he had heard no witness as he knew of speak of the transaction; that ho lived 18 miles from the neighbourhood of the defendant, and had not been there since the alleged commission of the offence. Held, that the challenge was not sustained.</p> <p>If the verdict against the defendant on an indictment be informal, the jury may alter it on motion of the prosecuting attorney, with the consent -and in presence of the Court, so as to give it the form of a general verdicit of guilty.</p>

<p>The statute imposing a fine upon any person who shall, without having a licensel as required by law, vend any foreign merchandise within this state, is not in Violation of the constitution of the United States.</p>

<p>Debt on a sealed note for the payment of 100 dollars. Plea, that the note was given in part consideration of a certain half quarter section of land, received by the defendant from the plaintiff in exchange for another tract; that at the time of the contract and to induce the defendant to make it, the plaintiff represented to' him that he had measured the half quarter section of land, and that it included a certain field, and a certain piece of bottom land containing 15 acres; that the defendant ignorant of the boundaries of the land, and relying on the plaintiff’s representation, made the exchange and gave the note; that the defendant has since discovered that the land so received by him does not include the field or bottom land, and that it is not worth as much by 200 dollars as it would have been had its situation been as the plaintiff represented it.</p> <p>Held, on demurrer, that the plea was a bar to the action.</p> <p>If the vendor of real estate undertake to point out to the purchaser the boundaries of the land, or the place where it lies, or its improvements, he does it at his peril and is liable for any mistake in the description.</p>

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

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

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

<p>If a declaration for goods sold and delivered allege the goods to have been .sold for a stipulated price, and then state a promise to pay the worth of the goods, alleging them to be worth the sum previously stated, it .is bad on special demurrer.</p>

<p>In a declaration against a justice of the peace and his sureties, on the official bond of the justice, it is not a sufficient assignment of a breach to state generally, that the justice had not faithfully discharged his duty; but the breach of some particular duty, of which breach the relator has a right to complain, must be set out.</p> <p>The sureties in such a case are not liable, unless the act complained of was done corruptly, or with a knowledge that it was unlawful.</p>

<p>A husband cannot claim a divorce on account of the adultery of his wife, if he cohabit with her after his knowledge of the offence.</p>

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

<p>A person being in possession of 80 acres of land belonging to the United States, upon which he had erected a mill, but to which land he had no claim, sold his possession for 350 dollars and received the purchase-money. He informed the purchaser, at the time of the contract, that he had no title, and that the land belonged to the United States. The purchaser afterwards sued the vendor, in indebitatus assumpsit, to recover back the purchase-money. Held, that the action could not be sustained.</p>

Williams, clerk of the Madison Circuit Court, and its seal hereto affixed at Andersontown, the 22d day of July, 1835.” On the second day of the term to which the writ was returnable, the defendant,—as his first step in the case so far as- the record shows,--^moved the Court to quash the writ on the- single ground, that the clerk’s name was not subscribed at the conclusion of the teste. This motion was sustained.

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

<p>If an affidavit be made tinder an act of congress relative to the sale of public land, and the party in making it commit perjury, he may be punished under the act of congress prohibiting the offence; but the Courts of this state have no jurisdiction of the case.</p>

<p>An insolvent debtor, imprisoned on an execution issued by a justice of tire peace, must make his application for relief from imprisonment to t-wo justices of the peace.</p> <p>A statute should be sc construed that every part of it, if possible, may be operative.</p>

<p>In an indictment for larceny, the jury have a right to determine the law 0» well as the facts of the case.</p>

<p>To an action on a bond, a plea stating merely that the parties had agreed, by a writing obligatory, that the bond should be discharged on certain conditions, is insufficient.</p>

<p>In a joint action against two, on a joint or on a joint and several contract, the plaintiff cannot take judgment against one alone, unless the process be returned non est inventus as to the other.</p>

<p>A judgment of acquittal by a.justice of the peace, on a charge of an assault and battery with intent to murder, is corám non judice and void.</p> <p>A plea of such acquittal, to an indictment for an assault and battery alleged W be the same offence with that determined by the.justice, cannot be sustained.</p>

<p>In an action foi crim. con., it was held that the solemnization of the plaintiff marriage might be proved by a witness, who was present at the ceremony.</p> <p>Whether, if the marriage was solemnized in another state by a justice of the peace, it should be proved that, b’y the laws of such, state, a justice was authorised to perform the ceremony,—queere.</p> <p>That the. plaintiff has failed to prove a m'aterial point in his case, is an objection npt to be made until the examination of his testimony is closed. If it then appear, that any proof indispensable to the maintenance of the suit has not been produced, the Court may instruct'the jury that the plaintiff cannot recover, ‘</p> <p>If a passage in adaw-book of another country be not law in this state, it ought not to’ be read to the jury.</p>

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

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

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

<p>The possession of a bond by a third person, is a strong circumstance to prove that he is authorised by the obligee to collect the money.</p> <p>In a suit on a bond against tho principal and his sureties, the acknowledgments of the principal may be proved to show his own liability; but qucere whether they can be considered as evidence to affect the other defendants.</p> <p>If the contents of letters be the subject of inquiry, the letters themselves must be produced or their absence accounted for.</p> <p>An agent'is liable, by the statute, for interest on money received by him for his principal, from the time of its being demanded.</p> <p>The Court ought not to express to the jury any opinion respecting the sufficiency of the evidence.</p>

<p>A plea of matters of set-off must be, under the statute, in the form of a plea of payment,—setting out, in the conclusion, the matters of set-off.</p>

<p>A plea to the jurisdiction of a justice in assumpsit was not sworn to; but the plaintiff went to trial on it before the justice and on appeal in the Circuit Court, without mentioning the defect. Held, that the objection was waived.</p> <p>The process in such case need not be answered, if not issued in the township where the defendant lives, or where the cause of action accrued, or where the process was served, unless there be no competent justice in such township.</p> <p>The want of jurisdiction, in such ease, may be proved under the general issue.</p>

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

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

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

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

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

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

<p>An infant may sue by guardian.</p> <p>In a declaration in trespass guare clausum frcgit, the name of the county was in the margin, and the close was.described as situated in that county. Held, that the venue was well laid.</p> <p>If a person cut down another’s trees, the trespasses if repeated may be laid In the declaration to have been committed on different days and times, though they cannot be laid with a continuando.</p> <p>The declaration in trespass guare clausum frcgit charged the defendant with breaking the plaintiff’s close, and then and there cutting down certain trees, &c. Held, that the breaking the close was the gist of the action, and the cutting down the trees only matter of aggravation. Held, also, that it was no objection to the whole count, in such case, that the matter in aggravation, was not well laid.</p>

<p>The exclusive right of property in the invention of, or improvement on, any new and useful art, machine, &c., is the creature of statutory law, and must be strictly regulated by its provisions.</p> <p>The assignment of a patent-right is not valid, unless the assignment be recorded in the office of the secretary of state of the United States; and a note given to an assignee for such a right, whose assignment had not been so recorded, is invalid for the want of consideration.</p>

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

<p>If the plea to an action on a writing obligatory be that the obligation was obtained by fraud, the onus probandi lies on the defendant.</p>

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

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

<p>If an execution-debtor escape from the prison-bounds, the bond for the limits ia forfeited; and his subsequent voluntary return to the bounds before the commencement of a suit on the bond, is no defence to such suit.</p> <p>Such a bond for the limits, though it should be insufficient under the statute, may still be good at common law.</p> <p>Although the condition of such a bond do not contain a recital of the matters which led to its execution, and which show a connection between it and the obligee,—the bond may still be sued on, and the omission be supplied by averments.</p> <p>In an action on such a bond, the measure of damages is the amount of the for which the debtor was committed, together with interest and costs.</p> <p>The replication in such a case, setting out the condition of the bond, &c., should aver the existence of a judgment on which the execution issued; and it should conclude with a verification.</p> <p>It is a good plea to a suit on such a bond, that the execution-debtor left the bounds with the previous consent and license of the plaintiff.</p>

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

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

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

<p>tf the payee of a promissory note refuse to comply with the condition Upon Which the note Was made payable to him, he cannot sustain a suit against the maker on the notei</p>

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

<p>ERROR to the La Porte Circuit Court.</p>

<p>A transcript of the record of a judgment is not admissible as evidence, unless it have a placita and be legally authenticated.</p> <p>After a town lot had been sold on execution, the execution-debtor brought an ejectment for the lot against a person who claimed it under the purchaser at the sheriff’s sale. Held, that the propriety of the sheriff’s conduct in selling the whole instead of a pait of the lot was a proper subject of inquiry; and that evidence relative to the divisibility and value of the lot was in such case admissible.</p> <p>The plaintiff in such case, in order to impeach the defendant’s title, may prove that when the sheriff sold the lot, it was known to the purchaser and to the defendant that the rents and profits had not been offered for sale.</p>

<p>The vendor of a tract of land containing a certain number of acres, brought a suit against the vendee for the purchase-money. The defendant who retained the land, but who wished to have a reduction of the price, proved that a certain field, which the vendor had represented to be included in the premises, was not so included.</p> <p>Held, that the question whether the land was worth less, and if so, how much less, than it would have been had the boundaries not varied from the description, was a proper subject of inquiry; and that the plaintiff, as well as _ the defendant, had a right to introduce evidence on the subject:</p> <p>If to an action on a note for the payment of money, the defendant plead a failure of the consideration, setting out the contract under which the note was given,—Iris proof of the contract must agree with the description of it in the plea.</p>

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

<p>In. assumpsit for goods sold and delivered, a. general plea of fraud is good even on special demurrer.</p>

<p>An order of the board of county commissioners, giving the collector of the county revenue a longer time for payment of the revenue of the year than the law prescribes, is without authority and wholly inoperative.</p> <p>A prolongation of the time of payment, given by a creditor to his debtor without a new contract founded on a valid consideration, though given without the consent of the surety of the debtor, will not exonerate the surety from his liability.</p> <p>The rule of law, that the best evidence which the nature of the case admits of must be produced, applies as well to secondary as to primary evidence.</p> <p>If in an action against the collector of county revenue, the defendant do not produce the duplicate of the assessment-roll, upon notice given him to produce it,—the assessment-roll in the clerk’s office is the next best evidence of the contents of the duplicate, and must be produced or its absence accounted for, before parol evidence of the contents of the duplicate can be received.</p>

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

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

<p>The heir is not hound, in any case, for the debts of his ancestor, beyond the amount of the assets descended.</p> <p>A bill in chancery containing a claim against a defendant in his individual capacity, and another against him as an heir for the debt of his ancestor, may be objected to for multifariousness; but the objection must be made before the defendant has answered the bill.</p> <p>If a Court, either of law or of chancery, have no jurisdiction of the mbjeci-ma& ter in controversy, it can render no valid judgment or decree upon the merits of the cause.</p> <p>That the vendor of real estate has no title to the property, is a good defence to an action against the purchaser on a bond executed by him for the purchase-whether the suit be brought by the obligee or assignee of the bond.</p>

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

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

<p>The motion of a prosecuting attorney, under the statute of 1835, for judgment that the title to a lot or tract of land be vested in the state for the non-payment of taxes, will not be granted, unless it appear, infer alia, that notice of the motion has been published conformably to the statute.</p>

<p>The declaration in assumpsit against a common carrier by -water, was for the non-delivery of a certain quantity of salt and steel, which ho had received to be carried, &c. Held, that a bill of lading in which the defendant acknowledged the receipt, not only of the salt and steel but also of certain other articles,—was not objectionable as evidence on the ground of variance.</p> <p>Held, also, that as the suit was for the non-delivery of the goods, and was not brought until two years after the defendant had received them,—it was no defence to the suit, that the river on which the goods were to be carried, was, for four months after they wore received, too low for the navigation of the defendant’s boat.</p> <p>Held, also, that the measure of damages in such case, if the plaintiff succeed, is the wholesale value of the goods at the place at which they wore to be carried,—deducting the price of freight.</p>

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

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

<p>A justice’s transcript in a case of bastardy stated, that the justice had adjudged the. defendant to be the father of the child, and had recognised him 'to appear in the Circuit Court; but it omitted to state that the defendant had failed to compensate the mother. Held, that the Circuit Court ought not, for that omission in the transcript, to discharge the defendant from his recognisance. Held, also, that if the compensation had been made, bond given, &e., the same might ho pleaded in the Circuit Court in bar of the accusation.</p> <p>The mother’s affidavit in such case need not state that she is resident in the county, or that the child was born there, or that it is alive.</p> <p>^ftel. tjj0 defendant’s discharge from his recognisance in such case, it is too late for a motion on the part of the state to have the recognisance forfeited,</p>

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

<p>Debt on a promissory note for 50 dollars, brought by the assignee of the payee against the maker. The defendant offered in evidence, under the general issue, a deposition stating that the note was given to the payee in payment of a horse which belonged to the witness and the payee,—that the payee afterwards agreed that the witness should receive from the defendant one half the amount of the note,—and that the witness did receive from the defendant 25 dollars in part payment of the note. Held, that an objection to the deposition on the ground that the witness was interested, could not bo sustained.</p>

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

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

<p>A transcript of the judgment of a justice of the peace, with a certificate that an execution onthejudgmenthad been returned “no property found,”—was filed in the clerk’s office of .the Circuit Court, for the purpose of obtaining an execution from that Court: After the transcript was filed, and before the execution issued, the judgment-debtor died. Held, that in such case, the scire facias to have execution from the Circuit Court, should he not only against the heirs of the deceased, but also against his executors or administrators and the terre-tenants if any.</p>

<p>If in a suit on a specialty, the defendant obtain oyer of the instrument, and then set it out untruly in a material part and demur to the declaration,—the Court, on the plaintiff’s motion, will set aside the demurrer, and render judgment in his favour for want of a plea, unless the defendant obtain leave to proceed more correctly.</p>

<p>Where land is bounded by the Ohio river on the Indiana side, the owner’s right extends to low-water mark.</p>

<p>Trespass for breaking the plaintiff’s close and taking away his grain. Special plea, that the close was the freehold of JL., and that by his license the defendant entered, &c. Held, that the plea was good. Held, also, that the facts contained in the plea might be given in evidence under the general issue.</p> <p>A person having a pre-emption right to a certain tract of United States' land, which right was to expire on a certain day, sowed grain on the land which he knew would, on that day, be unripe, and then permitted the time to expire without making the purchase. Held, that a stranger, who afterwards purchased the land of the United States, was entitled to the growing crop.</p>

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

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

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

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

<p>If evidence be admitted in the Circuit Court without objection, its admission cannot afterwards be assigned for error.</p> <p>The statement of demand filed before a justice, need not show that the justice has jurisdiction of the suit; but if such statement show the justice’s want of jurisdiction, the suit will be dismissed.</p> <p>The want of jurisdiction of the justice may be pleaded, or given in evidence under the general issue.</p> <p>If in replevin before a justice, the defendant appear, plead in bar, and go to trial, without objecting to the affidavit, he cannot afterwards object to it as an affidavit. But the affidavit, in such case, may answer for the statement of demand; and in that character it may be objected to or be amonded as other statements of demand.</p> <p>On an appeal in replevin, the plaintiff may, on payment of costs; have leave to amend hia statement of demand filed before the justice, by inserting'the value of the property.</p> <p>The justice’s jurisdiction in replevin extends to goods the value of which does not exceed 50 dollars.</p>

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

<p>APPEAL from the Sioitzerland Probate Courts</p>

<p>In criminal cases, except petit misdemeanors, &c., the state as well as the defendant may insist on a trial by jury.</p> <p>If the state claim a jury in such criminal case, but the Court notwithstanding try the cause without a jury and acquit the defendant,—the trial is a nullity, and the cause must be tried again.</p>

<p>If there be a justice’s certificate attached to a plea in abatement, stating that the plea had been sworn to before him, the plea must be considered, under the statute, as sufficiently verified.</p> <p>If such certificate be imperfect, and the plea have been properly sworn to, the Court should permit the justice to amend the certificate.</p>

<p>An indictment charging a person who has taken up an estray, with not complying with the provisions of the statute on the subject, must state the particular acts which the defendant has omitted to perform.";</p>

<p>To prove what the question in issue in a previous suit was, the complete record of the suit, and not a detached special plea filed in it, must be produced.</p>

<p>Any unmarried woman resident in the state, may make complaint before a justice, under the statute, against the father of her bastard child, without regard to the place where the child was born.</p> <p>The Court in ordering the father of such child to make certain payments for its maintenance, should not direct an execution to issue in case of non-payment.</p> <p>Upon ah order for such payments, a scire facias or an action of debt may be sustained by the party entitled to the money.</p>

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

<p>The complaint in a case of forcible detainer, must show that the land is within the county, and that the detainer is unlawful.</p> <p>The verdict for the complainant in such case, must state that the premises are detained by force.</p> <p>If no judgment can be rendered in consequence of the imperfection of the verdict, the Court awards a venire de novo.</p>

<p>If a third person be induced to purchase the assignment of a note due from an intestate’s estate, by the promise of the administrator that it shall be paid,— the promise is not within the statute of frauds, and the administrator is personally liable to the assignee.</p>

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

<p>Replevin for the detainer of a horse. Plea, property in defendant. Replication in denial, and issue. It appeared that the plaintiff had , bought the horse of the defendant, but that the latter still had him in possession. Held, that these facts did not necessarily show that the issue must be found against the plaintiff, unless ho had proved a demand and refusal of the horse.</p> <p>A horse was purchased for 80 dollars, but neither the property nor possession was to pass until the purchaser had executed a note for the price. A note for only eight dollars was, by mistake, executed and delivered in pursuance of the contract. Held, that the property in the horse was not changed.</p>

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

<p>ERROR to the Tippecanoe Circuit Court,—The plaintiff in error was the plaintiff below; the demurrer to'-the special plea was overruled,- ánd the judgment-was for the defendant.</p>

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

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

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

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

<p>Held, that a promissory note dated at Union county, State of Indiana, might be declared on in another county, without noticing the words Stale of Indiana.</p> <p>Held, also, that the declaration in'such case need not state the place at which the note is dated.</p>

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

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

<p>If the boundary of a school district be changed conformably to a legal petition, the consequent change of the boundary of the adjoining district is valid without a petition.</p>

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

<p>Perjury may be committed in giving evidence before a grand jury.</p> <p>An indictment for perjury must state a day certain on which the offence was committed..</p>

<p>The jurisdiction of Courts of equity, in matters of account, has been gradually enlarged, until it has become concurrent with that of common law Courts, to an almost unlimited extent, over the mutual dealings of parties, even! when those dealings consist of items of a purely legal Character.</p> <p>Courts of equity, however, have no jurisdiction over accounts where there is but one item on a side, or where there is no mutuality of dealing and a discovery is not required. .</p> <p>In matters of account which are mutual and complicated, or where a discovery is required, or a multiplicity of suits will be avoided, or the remedy at" law is not full and adequate, or fraud, accident, or mistake, is connected with the subject, Courts of equity have jurisdiction; but where none of these characteristics exist, the mutual dealings of the parties result in causes of action, matters of set-off, &c., cognisable only at law.</p> <p>Courts of equity sometimes protect a creditor against the effects of the insolvent cyof his debtor, where there are mutual credits and the law furnishes no adequate remedy, by decreeing a set-off.</p> <p>A defendant-in a suit atlaw, who confesses judgment, reserving equity, &c., has no right to proceed in chancery for his demand against the plaintiff, which he would riot have had without such reservation.</p> <p>An objection that the Court, whether of law or equity, has no jurisdiction over the subject-matter in controversy, may be made at any stage of the suit.</p> <p>If a party with full knowledge of the facts, voluntarily pay an unjust debt which is attempted to be enforced against him by legal proceedings, he cannot afterwards recover it hack either at law or in equity; a fortiori., if a debt thus paid had been previously in part paid, the first payment cannot be recovered back. . • ■</p> <p>If a note upon which the maker has confessed judgment, was obtained by fraud or mistake, he may obtain relief in a Court of chancery.</p>

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

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

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

<p>Suit by Charles D. Dana, John D. Wheeler, and Nicholas Merriweather, on a promissory note payable to Dana, Wheeler, & Co. The declaration described the plaintiffs as partners trading under the firm of Dana, Wheeler, & Co., and alleged that the note was made to them by the name of the firm. Plea, the general issue. Held, that the plaintiffs must prove that they constituted the firm.</p>

<p>No particular form is necessary to constitute an assignment, in equity, of a chose in action; and the assignment in such case may even be by parol.</p> <p>A bill in chancery for a foreclosure, &e., stated that the mortgagee had, for value received, assigned and indorsed to the complainant the note, to secure which the mortgage was executed, and ordered the payment to be made to him. Held, that the description of the assignment was sufficient in equity.</p> <p>The heir, and not the executor or administrator, of a deceased mortgagor, is the proper party defendant to a bill for a foreclosure and sale of the mortgaged premises.</p> <p>The statute which prohibits the commencement of a suit against an executor or administrator, until the expiration of a year from the date of his appointment, docs not apply to a bill for a foreclosure, &o. against the heir of the mortgagor.</p>

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

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

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

<p>If in the ease of a sale of real estate, the deed is to be made and the price paid on. the same day, the vendor cannot sue for the price unless ho has, of.his own accord, performed or offered to perform his. part of the contract.</p> <p>To such suit, a plea stating that the plaintiff had not executed the deed, (omitting to state that he had not offered to execute it,) is insufficient.</p> <p>Pleadings must contain facts—not matters of law.</p> <p>A contract to execute a good and sufficient title to real estate cannot be complied with, whilst a part of the premises are held by third persons under unexpired leases.</p>

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

<p>A justice of the peace with whom the docket of a former justice is legally deposited, may give certified copies from such docket; but the certificate must show, that the justice making it has the legal custody of the docket.</p> <p>A judgment of a justice against a defendant is a nullity, unless the defendant had actual or constructive notice of the suit, or_appeared to it.</p>

<p>ERROR to the Henry Circuit Court. The judgment of the Circuit Court was for Knight, the claimant.</p>

<p>A suit in chancery lies for an account of mesne profits after a recovery in ejectment, if the bill claims a discovery and shows a right to it.</p> <p>If the occupant of land evicted by a better title be entitled, under the occupying claimant law, to a compensation for his improvements, he is only liable for the rents and profits of the land without the improvements.</p>

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

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

The demurrers to the special pleas in this case were overruled by the Court below, and a judgment was there rendered for the defendant.

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

<p>ERROR to the Delaware Circuit Court. The plaintiffs in error were the defendants below; and the demurrers to the pleas were general.</p>

<p>In a suit against a justice for not filing in time the papers in an appeal, the best evidence of the justice’s judgment is his record or a certified copy of it,—not a copy, certified by the clerk, of the transcript filed in the Circuit Court.</p>

<p>Sureties of the peace were obtained before a justice, but the Circuit Court refused to continue the defendant under recognisance. Held, that the complainant was not liable for costs.</p>

<p>A justice having rendered a judgment for the plaintiff, was directed by him not to issue an execution until the time for taking an appeal had expired. Held, that in such case, the justice was not bound to issue an execution until the plaintiff requested it. •</p>

<p>Trover. Plea, a former recovery in assumpsit for the non-performance of the same promises mentioned in the declaration-. Held, that the plea "was bad.</p> <p>If an instrument of writing not set out in the pleadings be offered in'evidence, its execution must be proved.</p>

<p>If the plaintiff’s lessor in ejectment claim title to the premises, as a purchaser under a judgment and execution against the defendant’s grantee, the grantee’s confessions made subsequently to.the judgment, tending to invalidate the defendant’s deed to him, are inadmissible as evidence for the defendant.</p>

<p>ERROR to the Fayette Circuit Court. Mary Sewell was the plaintiff below; and- John Maize the defendant. .</p>

<p>To a suit on a promissory note, the defendant pleaded payment to a third person conformably to the plaintiff’s written order, and set out the order in the plea. The replication, not sworn 'to, denied payment. Held, that under the statute,- the defendant might give the order in evidence without proving its execution-.</p> <p>If upon a demurrer to a plea being overruled, -the plaintiff withdraw 'the demurrer and reply; he cannot afterwards object, on error, to the overruling oí the demurrer.</p> <p>^I., holding a promissory note against B.,. gave G. an order directed to B. as follows; “Let G. have as much of.my money in your hands as he wants, and I will credit the note with the same.” Held, that the order, .being unrecalled,, authorised B., by'maldng payments to G. from time to time, in cash or otherwise, to discharge'the note;</p>

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

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

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

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

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

<p>The general issue admits the character in which the plaintiff sues.</p> <p>Words spoken in another state, actionable at common law, are actionable here.</p> <p>If an instruction to the jury be refused, and the record do not show its applicability to the case, it must be presumed to have been irrelevant and correctly refused.</p> <p>When the words complained of in slander derivo their slanderous import from extrinsic facts," the declaration must aver those facts, and connect them by a colloquium with the words laid.</p> <p>In slander, neither equivalent words, nor words which derive their identity of lúeaning with that of those laid in the declaration from extraneous matter not averred, are sufficient to support the action.</p>

<p>In a suit by The Corydon Steam-Mill Company for an instalment on stock subscribed for in the company, the declaration should state by whom tho subscription was received, and should allege that notice to pay the instalment - had been given'agreeably to the charter.</p>

<p>The transcript filed by a justice on an appeal did not state that the appeal had been prayed for or granted. The judgment was rendered on the 21st of June, 1836, and the transcript, appeal-bond, &c. were filed on the third of Jlugust following. Held, that the filing of the transcript, &e. was sufficient evidence, prima facie, that the appeal had been duly prayed for and granted. Held, also, that if the appeal-bond so filed be insufficient, a new one maybe filed.</p> <p>The objection to an appeal from the judgment of a justice, that tho papers were not filed in time, may be waived by the appellee.</p> <p>The affidavit and claim of a third person to property taken in execution, should show whether the claimant be the absolute owner, or whether his claim be conditional, and if tho claim bo conditional, whether it was created by deed or by paiol ¡ but if the objection for a defect.in these particulars be not made before the justice, it is waived.</p>

<p>Á justice of the peace who issues a writ of domestic attachment, by which the goods of an absconding debtor are attached, without requiring a bond to be previously filed according to the statute,—and the party who procures such writ to be issued without previously filing the bond,—are trespassers, and Hablo as such to the party injured.</p>

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

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

<p>«#. took a lease of real estate, covenanting to pay rent, &c. Several weeks afterwards, B. agreed with the lessor by a writing obligatory to be surety for the lessee. Held, that the contracts of .d. and B. were several, and did not subject them, to a joint suit.</p>

<p>A special demurrer cannot bo filed after tlie day for which the causo is set for trial.</p> <p>After judgment for the plaintiff on demurrer to the declaration, in a suit on a promissory note, it is unnecessary, on executing the writ of inquiry, to prove the execution of the noté.</p> <p>As to the form of a declaration in an action on several bank-notes.</p> <p>Whether the declaration shows a sum due sufficiently large to give the Circuit Court jurisdiction depends, not upon the amount 'of any one particular item, but upon the whole amount, demanded in the declaration.</p>

<p>APPEAL from the Scott Circuit Court. This was an action of ejectment by the appellee for a tract of land in Clark county.</p>

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

<p>If a party having covenanted to perform certain work, has performed it hut not agreeably to the covenant, the person for whom it was done may, either expressly or impliedly, render himself liable in assumpsit for the work done.</p> <p>The special agreement in such case is admissible evidence for the plaintiff, to prove the value of the services rendered.</p>

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

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

<p>Two persons were disputing about their partnership accounts as merchants; when one charged the other with pilfering out of the store. Slander for these words. Held, 'ihat to charge another with pilfering is actionable. Held) also, that it was not error to permit the plaintiff on the trial to ask a witness who heard the charge, what he understood by it, nor. to refuse the defendant leave to prove that the plaintiff attended alone to the store. Held, also, that the judgment in this case against the defendant, “on his demurrer to the evidence, was not erroneous.</p>

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

<p>In February, 1837, FI. sued S. in the White Circuit Court in assumpsit. Plea, non assumpsit. On the trial, S. offered to prove that in March,-1837, he sued FI before a justice on two promissory notes; that IF. proved in that suit, as a set-off, the demand now sued for; that the verdict and judgment being against IF., he appealed to the White Circuit Court; and that the appeal was still pending. Field, that the evidence was inadmissible.</p> <p>The pendency of a subsequent suit cannot be pleaded, either in bar or abatement, to a prior suit for the same cause.</p>

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

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

<p>ERROR to the Daviess Circuit Court. Indictment for keepjng a digor(jerly house, &c., and judgment for the state.</p>

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

<p>A suit for the non-delivery of goods was held not to lie; the conditions on which the delivery was to have been made not having been complied with.</p> <p>A count for money had and received is not maintainable if the contract on which the money was received has been in part performed, and the plaintiff has derived some benefit, unless the parties can be placed by a recovery in the same situation in which they were before the contract.</p>

<p>If the obligor of a title-bond had no title to the premises at the time the deed was to be executed, the obligee may sue on the bond without having demanded the deed.</p>

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

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

<p>A patent for United States’ land which appears to be signed by the president, countersigned by the commissioner of the general land office, and verified by the seal of that office, is admissible as evidence without proof of its execution.</p> <p>A deed with subscribing witnesses is not admissible in evidence on proof of the grantor’s hand-writing, unless the absence of the witnesses be accounted for, and due diligence have been used, without effect, to procure proof of their hand-writing.</p> <p>A conveyance of real estate, purporting to be executed to the party offering it in evidence, is not admissible, though it appear to have been acknowledged and recorded, unless its execution be proved.</p> <p>In an action of disseisin, it is not necessary to prove a notice to quit or a demand of possession, if there be no privity between the parties.</p>

<p>A charge of an assault and battery with intent to kill, is only a charge of an assault and battery; the words “with intent to kill” heing surplusage.</p>

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

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

<p>Under the statute of 1831 regulating descents, the widow of a person dying intestate without issue—leaving a father, mother, brothers or sisters or their descendants—is entitled to only 100 dollars of his personal estate, and one-third of that part of it which remains for distribution.</p>

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

<p>A scire facias against a surety on a recognisance for his principal’s appearance at the next term of the Circuit Court is not sufficient, unless it show the default of the principal.</p>

<p>If a debtor execute to his creditor an absolute deed of conveyance for real estate, with a verbal condition that the grantor shall have the right, for a specified time, to redeem by payment of the debt, the deed is but a security for the debt.</p> <p>The assignment of a debt so secured .carries the security with it.</p> <p>The debtor in such ease may waive the right to redeem, and authorise the creditor to sell the land in order to obtain payment; and in case of a sale, though the debtor’s design in authorising it be to defraud other creditors, a honafide purchaser for yalue will be protected by a Court of equity.</p> <p>If A. purchase land with iJ.’s money, and take the conveyance in his own name, he holds the land in trust for B.; and -the lq.nd go held is liable to the debts of the cestui que trust.</p> <p>3uch a trust may be established by parol testimony, even against the answer of the trustee.-In such case, however, the bill must be supported not only by two witnesses, or by one witness- and corroborating circumstances, but the testimony-must be clear and should be received with great caution.</p> <p>It cannot be shown by parol evidence, in order to establish a trust in real estate, that the person having the legal title purchased the estate with his own money for the use of another; that would be to overturn the statute of frauds. ■</p>

<p>Son assault is a good defence to an indictment for mayhem; but the defence can only be sustained by proof, that the resistance was in proportion to the injury offered.</p>

<p>On the trial of an indictment for an assault and battery, the defendant, in order to prove a former conviction before a justice for the same offence, may introduce a transcript of the justice’s record showing the defendant’s conviction of the offence, though the transcript do not state that some person, present at the commission of the offence, was examined as a witness, &c. But whether the transcript issufficient, prima facie, to sustain the defence, queere.</p> <p>The facts relative to the evidence given at the trial before the justice, may, in such case, be proved by parol. .</p>

<p>Trespass against a justice and constable for an assault and batteTy, &e. The justice pleaded, that he had entered three fines against the plaintiff for “profanely swearing three several oaths by taking the name of God in vain,” and that the imprisonment, &c. The constable' pleaded that as constable under a mittimus in said case, &c., he did, &c. Held, that the description of the offences in the pleas was sufficient.</p>

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

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

<p>When a deed—whether a single bill or a bond with a condition—is the foundation of an action of debt, nil debet is a bad plea on general demurrer.</p> <p>It was stated in the condition of an attachment-bond, that the attachment had issued; and the condition was set out in a declaration on the bond, field, on general demurrer, that a plea denying that the attachment had issued was inadmissible.</p> <p>Whether the pendency of an attachment-suit can be pleaded.to an action on the attachment-bond?—queerer</p> <p>The declaration in a suit on an attachment-bond stated the condition of the bond to be,—that the plaintiff should duly prosecute the writ, and pay all damages which the defendant might sustain should the proceedings be oppressive. The breach assigned was,—that though the writ issued, and the proceedings were wrongful and oppressive, the defendant had not paid the penalty of the bond. Held, on general demurrer, that the breach was insufficient.</p>