Volume 4 — Indiana Reports

<p>It is competent for the legislature to make the state printer an officer. The law of 1843 made the right to do the state printing and take the compensation therefor, an office.</p> <p>The office of state printer is one of trust and profit.</p> <p>The sale of the office of state printer is prohibited by principles of public policy.</p> <p>The act of 1851, entitled “An act in relation to the pay of Austin H. Brown, printer to the constitutional convention of Indiana,” does not sanction the assignment of the office of state printer made by Jacob P. Chapman, state printer, to Ellis and Spann.</p> <p>The printing done for the constitutional convention of 1850, was not embraced in any contract, express or implied, between the state printer and the legislature that elected him.</p> <p>NS contract could be implied, on the part of the legislature, with the state printer, further than that he should execute the printing authorized by a legislature acting under the same constitution with that which elected him.</p> <p>By public printing is meant that which is directly ordered by the legislature, or performed for the agents of the state government authorized to procure it to be done.</p> <p>Tie printing executed by Austin H. Brown for tie constitutional convention of 1850, was not authorized by a legislature acting under the constitution of 1816, nor by any legislature; nor did any-authorized agent of the legislature procure it to be done.</p> <p>The printing done for the constitutional convention of 1850, was procured by the convention to be done on its own responsibility; and the subsequent payment for it by a legislature sitting under the authority of the constitution of 1851, was a voluntary and not an obligatory act; and the state was not rendered liable for damages to the state printer thereby.</p>

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

<p>A person who lias lost money, or a valuable thing, by betting upon a horse-race, may recover back the money, or the value of such thing, under the R. S. 1843, by an action of debt, if prosecuted within six months after the loss.</p>

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

<p>Money obtained by fraud may be recovered back in assumpsit.</p> <p>In an action to recover back money obtained by fraud, proof tliat tbe defendant obtained a part of tbe money for tbe use of a third and innocent person, is no defence against tbe recovery of that part.</p>

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

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

<p>The declaration in a suit for trespass before a justice of the peace, contained two counts. The first concluded “ to the damage of the said plaintiff in the sum of fifty dollars, and he sues, &a.” The conclusion of the second count was as follows: “ Whereupon, by reason of all the foregoing premises, the plaintiff saith that he is injured and hath sustained damage to the amount of fifty dollars, and he sues,” &c. Held, that the words, “by reason of all the foregoing premises,” must be restrictedtotlie matters set forth in the s.econd count; and that a motion to dismiss the suit, upon appeal in the Circuit Court, for the want of jurisdiction of the justice, was correctly sustained.</p>

<p>A person inherited lands in this state from her maternal grandfather and died while the R. S. of 1831 were in force, intestate, and unmarried, leaving a father surviving her, hut neither children nor their descendants, nor brothers or sisters, but brothers and sisters of her mother. Held, that the father inherited the laud.</p>

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

<p>The return upon a fi. fa. that it was levied “upon the property of” the execution-defendant, without designating the kind, quantity, or value, and accompanied by no other paper or memorandum to remove the uncertainty, is void for uncertainty.</p> <p>A levy is prima facie a satisfaction of the execution; but it may be shown to have proved to be not an actual one.</p> <p>Judgments against A. and B. in the Circuit Court. The judgments having become dormant, a scire facias was issued on each of them, and served on B., the survivor, and there was a judgment of revivor. That in the first case was as follows : “On motion, it is ordered that the judgment heretofore rendered in this case, be revived against B. as administrator of A., and against B. (the former judgment having- been rendered against B. and A.) and the defendant in mercy,” &c. The judgment of revivor in the second case, was as follows : “ The parties appeared, and, on motion, the same orders.” Held, that the judgments of revivor, though informal, were not void.</p> <p>Judgment against A. and B. A. having died, and the judgment having become dormant, it was revived by scire facias against B. and A.’s administrator, A.’s heirs not having been made parties. When the debt was contracted, and the proceedings upon scire facias had, the real estate of a decedent was subject to sale, by statute, upon a judgment against his administrator, without notice to the heirs. Held, that it was, therefore, only necessary to join the administrator of A. with B. to obtain a judgment on scire facias, on which the lands of B., and those which A.’s heirs had inherited from him, could be sold.</p> <p>A sale of real estate upon execution, without appraisement, is proper, if at the date of the contract upon which the judgment was rendered, the law did not require that lands to be sold on execution should first be appraised.</p> <p>Where it does not appear that the rents and profits of land were not first offered upon a sale on execution, it will be presumed that they were first offered.</p> <p>Great inadequacy of price will not vitiate a sale of land upon execution, where the inadequacy has been occasioned by the improper conduct of the execution-defendant.</p> <p>A voluntary conveyance of lands made by father to son, to prevent their being subjected to the payment of his debts—whether he is indebted as principal or surety—may be set aside by his creditors, and the land may be subjected to the payment of their debts.</p> <p>But the creditors will not be allowed to set aside the conveyance, until they have exhausted the other property of the grantor.</p> <p>An adverse possession, to confer title, must, under the R. S. 1843, have been exclusive and continuous for twenty years, under such circumstances as show the party to have been occupying upon a claim of ownership in himself of the premises.</p> <p>The possession of an execution-defendant is not adverse to the purchaser under the execution.</p> <p>If a person enter upon land under a conveyance purporting to convey the legal title, and continue to occupy for a period of twenty years afterward, as owner, an adverse possession is shown.</p>

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

<p>To entitle a person to a specific performance of a sheriff’s sale—if the sale can he at all enforced in equity—he must have filed his bill within a reasonable time, paid, or offered to pay, the purchase-money, and, in case of an offer, have followed up the tender by bringing the money into Oourt. ,</p> <p>A junior mortgagee who, to protect his own interest, purchases the mortgaged premises at a sale upon foreclosure of the first mortgage, is entitled to be subrogated to all the rights and equities of the first mortgagee.</p> <p>Gross inadequacy of price is not sufficient to set aside a judicial sale; but such inadequacy may be a controlling element, in connection with other circumstances, in determining its validity.</p> <p>The opinion of the legislature, repeatedly expressed through the appraisement laws, is not without its uses to our own Courts, in aiding them to come to correct conclusions as to what shall be deemed adequacy or inadequacy of price.</p> <p>A sheriff who, having several executions in his hands ujjon decrees of foreclosure against the same land, sells the land upon the execution having the preference, for a sum more than sufficient to satisfy it, should apply the surplus upon the other executions, according to the order of their preference.</p> <p>The fact that the purchaser under the first execution has not fully paid the purchase-money, does not authorize the sheriff to sell upon the execution next having preference. His act in accepting a part of the purchase-money, obliges him to take the proper steps to coerce payment of the residue.</p>

<p>The declaration in a suit brought by an infant, did not show that the nest friend named therein was admitted by the Court, nor that he filed his consent to act as such, agreeably to the statute; but no objection was made to the declaration, on that account, before verdict. Held, that, after verdict, the objection must be considered as waived.</p>

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

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

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

<p>On a motion for a new trial on the ground that certain facts can be proved by an absent witness, the affidavit of the witness should be produced if it be practicable to obtain it.</p> <p>At the close of the evidence in a cause, the plaintiif’s counsel addressed the jury without any restraint as to time. The defendant’s counsel having declined to reply, the plaintiif claimed the right to close the argument, which, upon objection being made, the Court refused to permit. Held, that in the consumption of time in the argument of causes, much must necessarily be left to the discretion of the judge sitting at the trial, and that discretion not appearing in this case to have been abused, held, that the ruling of the Court should not be disturbed.</p> <p>Where the error assigned is the overruling of a motion for a new trial, no points will be regarded by the Supreme Court as arising in the record, which were not made in the Court below.</p>

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

<p>To constitute a breach of the covenants of warranty and seizin in a deed of land, there must have been an entire want of title in the grantor when the deed was executed, or a subsequent eviction by paramount title.</p>

<p>In an action against a sheriff for failing to deliver toliis successor in office an execution placed in his hands, the successor is not a competent witness to prove that it was not delivered to him.</p>

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

<p>The owners of a steamboat, knowing the manner in which a flat-boat is fastened to the shore, are liable for the loss of the flat-boat and cargo occasioned by waves created by the steamboat while running out of the usual channel for such boats, under a full head of steam, near to the flatboat—if the persons in charge of the flat-boat have used all proper efforts to save the boat and diminish the damage occasioned by the waves.</p> <p>It is no answer to an action brought for the loss, under such circumstances, that if the flat-boat had been tied to the shore in an ordinarily secure manner, it would have escaped injury.</p>

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

<p>A tender of money in a handkerchief, with a statement of the amount and kind, is a sufficient tender.</p> <p>The maxim in relation to mortgages is, that “ once a mortgage always a mortgage.”</p> <p>Courts of Equity do not favor conditional sales; and they will pronounce that a mortgage which, at law, would he a conditional sale. They are disposed to consider every deed, whatever he its form, which resolves itself into a security for the performance of any act, as a mortgage.</p> <p>Where a party advanced money to another, and for his security took an instrument from the latter, from the language of which it was doubtful whether a conditional sale of land or a mortgage was intended, but took no note for the money advanced, held, that the omitting to take the note was not conclusive that a conditional sale was intended.</p> <p>Where from the language of an instrument it is difficult to determine whether a conditional sale or a mortgage of lands was intended, if the price was grossly inadequate, it will be construed to be a mortgage.</p>

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

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

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

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

<p>The issuing of an alias fi. fa. while the levy under the first is undisposed of, cannot affect the lien of the judgment.</p> <p>Where the land of an execution-defendant has, during his lifetime, been levied upon by a fi. fa., a venditioni exponas may issue after his death, and the land may be sold thereon.</p>

<p>S., by V., Ms attorney, during tbe term of tbe Circuit Court, filed a declaration in assumpsit, setting forth as the foundation of the action, two promissory notes executed by H., one of which was not then due, and would not be for six months thereafter. V. also filed a warrant of H. to confess judgment on the notes. The warrant was directed to V., authorizing him, in the usual form, to confess judgment, &c. The record showed that the execution of the warrant was duly proved to the satisfaction of the Court; the declaration and warrant appeared therein at full length; and immediately thereafter, without any intervening matter, the record proceeded thus: “And the said defendant now here waives the issue and service of process herein, and says that he cannot gainsay the plaintiff’s action, nor but that he hath sustained damages by reason of the non-performance in said declaration mentioned, in the sum of,” <fcc., being the amount of both notes. Judgment accordingly for that sum. The declaration alleged a promise to pay, in the usual form, according to the tenor and effect of the notes. Held, that the judgment was not entered by virtue of the warrant of attorney. Held, also, that if the confession were supposed to be a personal one, a judgment for the amount of both notes, would, under the declaration, have been unauthorized. Held, also, that the structure of the record precluded the idea that V., or any other attorney, appeared for H. Held, also, that the terms used, “the' defendant now here waives,” &o., taken in connection with the context and the circumstances, do not authorize the conclusion that H. appeared in open Court and confessed the judgment.</p>

<p>A., by agreement in writing, leased to B. a field to be tilled in corn, containing about thirty acres, for one year from March 1, 1849; and B., for the use of the field, was to give as rent one-third of the crop husked and delivered in the crib which A. was to furnish in the field. The corn was to be husked and cribbed on or before the 1st of January, 1850. The agreement then proceeds: The said B. is to move into the dwelling-house where C. now lives, and to have the privilege of firewood by using dead timber unfit for rails. Held, that the agreement rendered it obligatory upon A. to furnish' B. a house to live in during the term of his lease. Held, also, that in an action by B. before a justice of the peace for the neglect and refusal of A. to furnish the house, an averment in the cause of action of a demand by B, of the house was not necessary, even if the demand were necessary to be proved in order to maintain the suit. Held, also, that it was competent for B. to prove, by parol, that the house was situate on the premises leased.</p>

<p>When a statute confers a new power on a justice of tlie peace, he must proceed in the mode prescribed by the statute.</p> <p>An act of 1849 conferred upon justices of the peace in certain counties, exclusive jurisdiction over certain offences, and enacted that they should, “ on complaint under oath, or on view, take jurisdiction of all such offences.” Held, that the justice could not render a judgment against an offender upon confession of any such offence, except on such complaint or on view.</p>

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

<p>A. sold to B., by deed of warranty, a tract of land incumbered by a mortgage executed by A., and gave to B. a penal bond to secure tlie payment of the mortgage by a given day. A, failed to pay it; but B. had not paid it nor suffered any inconvenience from the non-payment. Held, in a suit by B. against A. upon the bond, that the damages recovered should have been only nominal.</p>

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

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

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

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

<p>A count in an indictment founded on s. 100, c. 53, E. S. 1843, alleged that the defendant " did then and there suffer his house, building, room, arbor, booth, shed, and tenement, to be used and occupied for gaining.” Held, that the count was not liable to objection for duplicity.</p> <p>It was alleged in the second count that the defendant, “at and in the county aforesaid, did then and there knowingly keep, and suffer his house,” <Sec., “to be used,” <&c. The venue, Posey county,had been distinctly stated in the introduction to the indictment. Held, that it sufficiently appeared in both counts, that the house, &c., were situate in that county.</p>

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

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

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

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

<p>A witness maybe permitted to refresh his memory by referring to a memorandum written by himself or another, at or near the time of the occurrence to which he testifies; but he can then only testify from his recollection.</p> <p>The fact that the memorandum was made out while the facts were fresh in his memory, and that he then tnew that the particulars contained in the memorandum were correctly stated, is not sufficient.</p>

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

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

<p>In a suit upon a bond of a justice of the peace, for the breach of any condition other than for the payment of money, the breaches were required by the R. S. 1843, to be assigned in the declaration.</p>

<p>The possession of land, under a deed given upon a sale for taxes, is adverse, though the title under the deed may be invalid.</p> <p>Under the R. S. 1824, a collector’s deed upon a sale for taxes was prima facie evidence that the collector had. done his duty in relation to the sale.</p> <p>Where land is held adversely, the party out of possession, although his right may be valid, is incapable of conveying to another.</p>

<p>Wlien a partner sells to a stranger his interest in tie partnership goods, the stranger cannot, on refusal of the co-partner on demand to admit him as a partner, maintain replevin for the goods.</p> <p>The sale by a partner of his interest in the partnership effects, dissolves the partnership, and the partner who has not disposed of his interest, has a right to the possession of the effects for the purpose of settling up the partnership, and the purchaser cannot interfere unless for good cause shown.</p>

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

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

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

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

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

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

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

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

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

<p>Ry the common law, a parol contract for the sale of chattels is valid; and the statute of frauds changes that rule only as to sales amounting to more than 50 dollars.</p> <p>A. sold a eolt to B., by parol, for 20 dollars, tlie parties agreeing that the colt should run with the mare, which belonged to A. and was in Ms possession, until it was weaned, when it should be delivered to B., who was then to pay the price stipulated. When the colt was weaned, B. tendered the 20 dollars, in specie, and demanded the colt. Held, that the contract vested the property in B., and placed it at Ms risk, from the moment when the bargain was closed, without any actual payment or present delivery; and, that A., from the time when the contract was made until the delivery of the colt to B., was a bailee.</p>

<p>It was not necessary, under the R. S. 1843, that the affidavit, upon a complaint for bastardy, should state the complainant’s place of residence.</p>

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

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

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

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

<p>A. held land by title-bond and had paid the purchase-money, and being sued at law for a debt, in order to prevent the land from being sold for the payment of the judgment, caused it to be conveyed, without consideration, during the pendency of the suit, to B., his son, who, before judgment, conveyed it to C. Judgment was afterward rendered against A. for the debt. B. and C. both received the conveyance, with a knowledge of the suit, and to prevent a sale of the land to satisfy the judgment; and A. still remained in possession of the land. Held, that the land was liable in equity for the payment of the judgment.</p>

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

<p>A motion for a continuance, based upon an affidavit of the 'party, is addressed to the sound discretion of the Court trying the cause; and the propriety of granting or refusing it must depend, to a great extent, on the peculiar circumstances of each case. From the very nature of the case, the Court trying a cause—witnessing all the proceedings, and being from personal observation familiar with all the attendant circumstances—has the best opportunity of forming a correct opinion upon the case presented.</p> <p>The general principles relative to the granting of continuances are well and clearly defined, hut, of necessity, there is a considerable latitude of discretion left to be exercised by the Court, and, if no general principle has been violated, the presumption will be in favor of the action of the Court.</p> <p>The Circuit Court, so far as it is vested with discretionary powers, will be presumed to have exercised them properly, until the contrary is shown; and, though its decision will be subject to revision, yet it will be presumed to have been in accordance with the justice and merits of the case, unless the party complaining shows unequivocally that the Court has been guilty of an abuse of such discretionary powers, and that his rights have thereby been injuriously affected.</p> <p>The defendant, indicted for larceny in the Wells Circuit Court, applied for a continuance upon his affidavit stating that he could prove by one A., a resident of Miami county, Ohio, that at the time the property mentioned in the indictment was alleged to have been stolen, the defendant was in the town of Greenville, and in the neighborhood, in Darke county, Ohio, and further, that said A. could prove his entire innocence of the charge, &o. Held, that the affidavitwas defective for confining the alibi to the day alleged in the indictment. Held, also, that the general allegation that the defendant could prove his innocence by the absent witness, was immaterial. Held, also, that the refusal of the continuance was not erroneous.</p> <p>After verdict against the defendant, he made a motion for a new trial, on the ground of the refusal of the Court to grant the continuance upon said affidavit. The Court overruled the motion. The evidence in the cause was not set out in the record. Held, that it must be presumed that the evidence did not disclose that the larceny was committed on the day alleged in the indictment and that no cause for a new trial was made by the evidence.</p>

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

<p>Debt on three promissory notes under seal. Plea, that the consideration of the notes was the sale of a certain parcel of land, situate, &c., and that, at the time of mating the notes, the plaintiff agreed to give the defendant a warranty deed for the land on the first payment, (which first payment was the note described in the declaration, payable 1st of March, 1847,) and to tate a mortgage bact as security, and that the plaintiff had not conveyed nor offered to convey the land to the defendant upon the payment of the note payable on the 1st of March, 1847, and the execution of a mortgage by the defendant to secure the other notes given for said purchase-money. Held, upon demurrer, that the plea was sufficient to bar the action.</p>

<p>A supervisor, for the purpose of keeping the highways of his district in order, might, under the R. S. 1843, enter upon any lands adjoining or near to any highway in his district, and thereupon construct such ditches, ¿sc., as might be necessary for the construction, repair, &o., of such highway.</p> <p>When the supervisor acts without the scope of his authority, and private injury is thereby sustained, the law will not protect him.</p> <p>A person acting as supervisor was sued in case for constructing a culvert across a public road in his district in such a manner as to convey water from a hill-side into and upon the plaintiff’s tan-yard, to his injury, áte. The plaintiff having proved the construction of the culvert by the defendant, in the manner charged, ¿sc., held, that the defendant, in order to relieve himself from liability, was bound to show that the culvert was necessary for the construction, repair, or preservation of the highway, and was constructed at the proper place. , ' ,,</p> <p>A judgment will not be reversed because an erroneous instruction was given to the jury, where the evidence would not have supported a ver-’ diet for the party complaining of the instruction.</p>

<p>bill of foreclosure. The evidence did not sustain the bill, but it was shown that the plaintiff, on several occasions before and after the execution of the mortgage, had advanced money to the defendant, the mortgagor, and for his use. Held, that the refusal of the Circuit Court to retain the bill and give a decree for the money thus advanced, was right.</p>

<p>Under the R. S. 1843, the widow of an intestate was a tenant in common with the heirs until objection was made.</p> <p>The statute creating the Centreville and Abington Turnpike Company, provided that, for the purpose of determining the damages ,to be allowed for land taken for the use of the company, each party might select one disinterested freeholder of the county, and give notice to the other party to select another, to act as arbitrators. Held, that the claim filed need not show that the arbitrator selected by the claimant was a disinterested freeholder.</p> <p>The statute mentioned authorized an appeal from the decision of the arbitrators selected by the parties to the Circuit Court, according to the same rules that prevail in cases taken from a justice’s judgment. The company having appealed from the decision of the arbitrators to the Circuit Court, and reduced the amount awarded over 5 dollars, held, that the company were entitled to recover costs.</p>

<p>A party by amending his plea after a demurrer has been sustained to it,waives his right to complain of the sustaining of the demurrer.</p> <p>Where there are issues under which evidence to sustain the finding of the Circuit Court would have been admissible, it will be presumed,- in- the absence of a bill of exceptions embodying the testimony, that the Court had before it the evidence necessary to sustain its finding and judgment.</p>

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

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

<p>In a suit upon a promissory note, -where the defence is a failure of the consideration, and the evidence at the trial is about equally balanced, the plaintiff must recover the amount of the note—the burden of impeaching the consideration being upon the defendant.</p> <p>The Court, sitting as a jury, having found a verdict for the defendant upon such evidence, the Supreme Court set aside the verdict and remanded the cause for a new trial.</p>

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

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

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

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

<p>An indictment for receiving usurious interest upon a note, did not allege the place where the note was made. . Held, on motion to quash, that the omission was fatal.</p> <p>Where any positive fact is averred in an indictment, it should be stated to have been done ‘‘then and there,” after the county has been clearly expressed in the body of the indictment; and the allegation of time and place, "then and there,” should be repeated to eveiy material fact which is issuable and triable.</p>

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

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

<p>An indictment for selling spirituous liquor by retail, without license, which omits to state a price for which the liquor was sold, is bad on motion to quash.</p>

<p>After verdict against a defendant indicted for retailing spirituous liquor without license, a motion for a new trial will not he granted because the price for which the liquor was sold was omitted in the indictment.</p> <p>It is not clear that a motion in arrest of judgment would be sustained for that omission.</p> <p>The motion for a new trial does not go to the indictment.</p> <p>In the absence of any other specified cause, it is directed to the sufficiency of the evidence.</p>

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

<p>A promissory note payable in property, under tlie R. S. 1843, imports prima facie, a valuable consideration.</p> <p>A declaration upon sucb a note need not allege the consideration.</p> <p>A party who has moved in arrest of judgment, cannot afterwards move for a new trial.</p> <p>"Where the verdict is fully sustained by the evidence, it will not be set aside because an erroneous instruction was given to the jury.</p>

<p>An indictment charging the defendant with receiving and concealing stolen goods, is not bad for duplicity.</p> <p>A defendant may be charged in one count of an indictment with stealing and in another with receiving stolen goods.</p>

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

<p>A fi fa. was issued in May, 1848, levied on a wagon, and returned in June of that year, with an indorsement that the wagon was not sold for want of a buyer. Its return-day, by the R. S. 1843, was in May, 1849. In March, 1849, another fi. fa., instead of a vendí., was issued on the same judgment, levied on said wagon, and returned on the 13th of that month, with a like indorsement. Iield, that, under the R. S. 1843, the lien of the first fi. fa. continued until May, 1850, and the wagon remained liable to be sold on a vendí, issued before that time. Held, also, that the issuing of the second fi. fa. was irregular, and did not affect the right to issue a vendí, subsequently on the first.</p>

<p>A. being the owner of land mortgaged to the school fund, and being about to remove to another state, appointed B., who lived near the land, his agent to lease it, &c., and to renew the mortgage at the expiration of the time it had to run. B. leased the land, &c., but did not renew the mortgage, an affidavit of the principal being necessary for that purpose. The land was sold, for the non-payment of the mortgage, and B. became the purchaser, and received a deed. More than ninemonths elapsed after B. knew he could not renew the mortgage, before said sale. B. afterwards sold to C., an innocent purchaser without notice of his agency, for a larger sum than the price paid by him, and left the state. A., without having demanded of B. an account, filed his bill against B. and C., praying that the land might be conveyed to him, and for general relief. Held, that it was the duty of B., as soon as he ascertained that he could not renew the mortgage, to give A. notice; and that B.’s purchase must be regarded as a mere trust for the benefit of A., who was entitled to the profits made by B. on the sale. Held, also, that B.’s non-residence excused a demand for an account before suit. Held, also, that C.'s title could not be disturbed.</p> <p>The residence of S. in another and distant state, and his ignorance of the fraud practised by was also held to excuse what would else have beon an improper delay in bringing said suit.</p>

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

<p>Debt upon a promissory note under seal. Plea, that the note, and two others, were given by the defendant to the plaintiff in consideration of the sale of a tract of land therein described, and for no other consideration; which land the latter agreed to convey to the former, by good warranty deed, on the payment of said notes. Averment, that one of the notes had been paid, to-wifc, &a., and that, before the bringing of the suit, both of the remaining notes were due, but that the plaintiff did not, before the bringing of the suit, convey or offer to convey to the defendant the land upon the payment of the notes. Held, that the plea was good.</p>

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

<p>Proceedings in form similar to those in Lindville v. The State, 3 Ind. R. 580, held to be good for the reasons there given.</p> <p>Prosecution for a nuisance under s. 17 of the act of March, 1853, regulating the retail of spirituous liquors. There was evidence tending to prove that the defendant, on a single occasion, sold liquor by a less quantity than a gallon, and suffered it to be drank in his house. It appeared also that he had bottles of different kinds of liquor usual in retail establishments. Held, that it was for the ¡jury to say whether this evidence was sufficient; and having so decided, in a matter peculiarly within their province, the verdict ought not to be disturbed.</p> <p>Where the defendant has moved in arrest of judgment, he cannot after-wards take the opinion of the Court on the sufficiency of the evidence on a motion for a new trial, unless he brings himself within some of the recognized exceptions.</p> <p>It is competent for the legislature to declare any practice deemed injurious to the public a nuisance, and to punish it accordingly.</p> <p>Whether a law is politic or expedient or necessary, is not a question with which the courts have anything to do.</p>

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

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

<p>It is competent for the Circuit Court to which a change of venue has been granted, to change the venue back, upon a proper application, to the same Court that granted it.</p> <p>A party by consenting to a change of venue and appearing to the action in the Court to which it is removed, waives his right to complain of any irregularity in the manner of the change.</p> <p>A cause was continued by the Circuit Court until the next term, which was then fixed by law for October, but before October the legislature dispensed with or postponed the term until the spring thereafter. Held, that the cause was not discontinued.</p> <p>An appearance after verdict waives a discontinuance.</p>

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

<p>In a suit brought upon the common count for goods sold, the parties, during the pendency of the action, entered into a written agreement, which was made a rule of Court, by their consent, by which the cause was submitted to A., B., and C. for their award, or the award of any two of them, <fcc., and said arbitrators after being duly sworn, should investígate and report to the Court, <hc., the result of their investigation of all accounts in issue between the parties, &c. Held, that this was a “ reference,” under the B. S. 1843.</p> <p>An objection that a report of referees was filed in vacation and not in open Court, must have been made before the Court below, or it will not be noticed on error.</p>

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

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

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

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

<p>Assumpsit by tbe assignees of an accepted bill of exchange against the acceptors. Pleas, the general issue, fraud, and want of consideration. General demurrers to the pleas of fraud and want of consideration. The entry following upon the record was—the cause is submitted to the Court for trial without the intervention of a jury, and, the evidence being heard, <&e., the Court find for the plaintiffs, &c. Held, that it must be presumed that the issues of law and fact were submitted together to the Court for trial, and that they all were found for the plaintiffs.</p> <p>'Where the general issue and special pleas are filed to the action, and the defence set up in the special pleas is admissible under the general issue, it is immaterial whether a demurrer to the special pleas is sustained or overruled.</p>

<p>Trespass. The first count in the declaration was in the usual form for an assault and battery. The second alleged that the defendant unlawfully, and with inhuman violence, beat, bruised, cut and gashed the face and head of thé^dafe&dahk <&<* Pisa,, that the several trespasses in the first and second counts mentioned (which were enumerated in the plea) were one and the same, &c.; that the relation of teacher and pupil subsisted between the parties; that at, <fcc,, in school and during school hours, the plaintiff, as such pupil, was negligent, disorderly, &c., and that the defendant, as such teacher, finding it necessary for the good government of the school, did thereupon moderately correct the plaintiff, as he lawfully might, &c., averring that this moderate correction constituted the several acts of trespass in the declaration mentioned, and in the introductory . part of the plea enumerated, &o. Held, that the plea was not a good answer to the second count, and the replication to it having been demurred to, that the plea was reached by the demurrer.</p> <p>A bad replication is sufficient for a bad plea.</p> <p>A teacher, in the exercise of the power of corporal punishment, must not make such power a pretext for cruelty and oppression; but the cause must be sufficient, the instrument suitable, and the manner and extent of the correction, the part of the person to which it is applied, and the temper in which it is inflicted, should be distinguished with the kindness, prudence, and propriety which become the station.</p>

<p>Motion to re-instate a cause upon the docket of the Supreme Court. The cause having been continued for two terms successively under the general order, was, at the next term, regularly called for trial, and, the plaintiffs failing to appeal-, was dismissed, at the instance of the defendants, under rule 19, governing the practice of the Court, which prescribes that “if, when a cause is called, the plaintiff fail to appear, the defendant may have the cause dismissed,” &c. At a subsequent day of the same term, on motion of the plaintiffs’ counsel, a rule was granted, and served on the defendants’ counsel, to show cause why the case should not be re-instated, &o. The only ground for re-instating the cause was contained in an affidavit of the plaintiffs’ counsel, alleging that he was necessarily absent on the calling of the canse; that it was dismissed for want of prosecution; and that he believed there were merits in the cause, and that justice required its re-instatement. Held, that no sufficient reason was shown for granting the motion.</p> <p>Where, however, at the calling and dismissal of a cause, the plaintiff is temporarily out of the court-room but returns immediately and asks its re-instatement, the Court would direct the entry of dismission to be stricken out.</p>

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

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

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

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

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

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

<p>There is a distinction in deposits of this kind: Where the very silver or gold deposited is to he restored, the transaction is a special or pure deposit; but where the party is to restore, not the identical coin, hut only an equivalent, on demand, it is called a loan or mutuum or irregular deposit.</p> <p>Semble, that the surplus revenue fund held by the state, is a deposit of the latter class.</p> <p>It is doubtful whether in a suit upon a surplus revenue bond, any relator is necessary; though a responsible relator might he proper.</p> <p>In legal contemplation the Board of Commissioners of a county is the county.</p> <p>In a suit upon a surplus revenue bond the hoard of county commissioners is a proper relator.</p>

<p>Where the assignor of a note fills up the assignment with the name of the assignee, he thereby designates1 the person to whom he is liable.</p> <p>But where he merely writes his name upon it, he agrees that the blank may be filled up by any bona fide holder, that the person whose name is filled in shall be his immediate indorsee, and that he will be liable to him as such.</p> <p>Where the indorsement remains blank, the note may be passed by mere delivery.</p> <p>These rules prevail in the assignment of notes under the R. S. 1843, as well as in assignments under the law-merchant.</p> <p>Where there are intermediate full indorsements, the indorsee cannot, in his own name, sue a remote indorser at law.</p> <p>Under the R. S. 1843, a promissory note in the form of a due bill, is negotiable.</p> <p>Such a note when sold may be indorsed in full or in blank.</p> <p>In a suit upon the assignment of a promissory note indorsed in blank, evidence that when it was indorsed the assignor told the person to whom it was delivered, that he need, not sue the malcer as he was poor—that he, the assignor, would see it paid, is not admissible.</p> <p>Where, without reference to improper evidence admitted, the proof sustains the finding of the Court, the judgment will not be reversed.</p>

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

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

<p>The Prohate Court had authority, under the E. S. 1843, and it was its duty upon a proper application, to grant a change of venue in proceedings under art. 3, c. 30, of those statutes, to contest the validity of a will.</p>

<p>To render a witness incompetent on the ground of interest, lie must be interested in the event of the suit.</p> <p>When it becomes material to ascertain with what motive an act was done, the declarations made by the party himself while doing the act, and explanatory of it, are admitted as being part of the transaction, and as serving to explain its real character.</p> <p>A. obtained judgment against B. before a justice of the peace, and filed transcripts in the clerk’s office and had them recorded, to bind B.’s land. Before he had procured an order for an execution, B.’s land was advertised for sale on an execution issued upon an older judgment. To prevent the sale, in order to procure an assignment of such older judgment, A. was advised by his attorney, who was also the attorney of the execution-plaintiff, to put in the sheriff’s hands a sum sufficient to satisfy the execution, whereupon he, the attorney, would order a postponement of the sale to allow A. time to procure the assignment. B. accordingly paid that sum to the sheriff, he and the attorney stating to the sheriff that the money was not paid in satisfaction of the judgment, but merely to prevent a sale of the land in order to give A. the control of the execution and judgment. Held, that the handing of the money to the sheriff did not operate to satisfy the judgment.</p>

<p>County treasurers were not, under the R. S. 1843, entitled to a per cent, for paying out that part of the revenue collected on the tax-duplicate.</p>

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

<p>Where the bill of exceptions does not profess to contain all the evidence, and a motion for a new trial does not appear to have been made, the presumption is that there was other evidence, and that the action of the Court was correct.</p>

<p>Prosecution under tile act of March, 1853, for retailing spirituous liquor without license. The defendant admitted the selling without license, as charged. Held, that thé question of the power of the legislature to prohibit the sale of spirituous liquor was not involved in the cause. Held, also, that the defendant’s admissions were sufficient to authorize a conviction, if the law was constitutional.</p> <p>The judiciary look to the acts of the legislature with great respect, and reconcile them with the constitution, and sustain them, if possible.</p> <p>The presumption that an act of the legislature is in violation of the constitution is not to be indulged, unless it is clearly subversive of that instrument.</p> <p>Such a presumption cannot arise from the mere fact that an act is imperfect or impolitic.</p> <p>It is the right and duty of the courts to inquire into the constitutionality of the acts of the legislature, whenever such questions are judicially presented.</p> <p>A construction of the constitution by the legislature, where it is restrictive of legislative authority; or where the constitutional question has not been considered by that body; or where such legislative construction is not continuous and concurring, is not entitled to much weight; and as between two legislative constructions differing from each other, that more nearly contemporaneous with the constitution, would seem to be the better authority.</p> <p>Sections 22 and 23 of the constitution of 1851, were designed to remedy the evil of local and special legislation which had grown up under the old system.</p> <p>The law-making power being vested by the constitution of 1851 in the general assembly, the exercise, by any other body, of the power to make, sanction, suspend, or give effect to, the laws is necessarily excluded.</p> <p>The term “ operation of the laws,” as used in s. 26 of art. 1 of the constitution of-1851, seems to mean, their taking effect and continuing in force.</p> <p>So much of the act of March, 1853, “ to regulate the retailing of spirituous liquor,” &c., as relates to the popular vote, is in conflict with ss. 25 and 26 of art. 1, and, also, of ss. 22 and 23 of art. 4, of the constitution.</p> <p>Submitting laws to the vote of the people in their primary capacity, is subvex-sive of the representative system and inconsistent with the constitution.</p> <p>It is, also, inconsistent with the constitutional provision requix-ing the yeas and nays on the final passage of a bill.</p> <p>As a license law, the act in questioxi is complete without the part relating to the township vote; and a license may issue upon the filing of the requisite bond.</p>

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

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

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

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

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

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

<p>Debt on a penal bond. The conditions were that the obligee had leased to the obligors a steamboat for a specified term, with her tackle, &c., for a sum named—the obligors to have the control of the boat during the term, and to return her, with her fixtures, at E., in as good condition, <Sic., reasonable wear excepted. The lessees were to pay the expenses of the boar during the term. If the boat should be stopped for debts previously contracted, the lessees were to be discharged as to rent, &c., but if destroyed while in the lessees’ possession, then, besides paying the rent, they should also pay a sum specified for the boat. On the performance of these conditions, the bond was to be void. The obligee warranted the boat to be sound, seaworthy, and to contain the necessary apparel, &c. Held, that the covenants in the condition of the bond were not dependent.</p> <p>The first breach assigned was, that the obligors did not return the boat in as good condition, <fcc., whereby the obligee was obliged to expend 2,000 'dollars in repairing her, &c. A plea to this breach set up, that though the boat was not in some respects in as good condition when returned as she was, &c., yet in others she was in a better condition, &c. Held, that the plea was bad either on special or general demurrer.</p> <p>Another pica to the same breach averred that the obligor was not compelled to expend 2,000 dollars, <&c. Held, that the plea was no answer to the substantial part of the breach.</p> <p>Held, also, that the defendants could not set up by plea that the boat when received by them was not in good repair, <fcc.</p> <p>Held, also, that they would not be excusable for taking the boat into dangerous waters, for the navigation of which she was not properly equipped.</p> <p>Held, also, that after having used the boat a month and snagged her, it was too late to set up that she was not properly fitted, <fcc., for navigation, and was of no value.</p> <p>In a suit upon a bond, a contemporaneous verbal agreement or understanding different from its stipulations, cannot be set up in bar.</p> <p>Where payment is pleaded, the burden of proving the plea is upon the defendant.</p>

<p>Imprisonment for debt is abolished in this state, except in cases of fraud.</p> <p>Under the R. S. 1843, a ca. sa. only issued where it appeared affirmatively by the finding of the Court or jury that the debtor had money or property which he fraudulently concealed or refused to give up.</p> <p>The policy of the law allowing the imprisonment of debtors being, in this state, to prevent fraud, it should receive a strict construction as to the debtor and a liberal one as to the creditor.</p> <p>The R. S. 1843 provide for that rule of construction.</p> <p>There are but two cases, under the R. S. 1843, in which a magistrate can discharge an insolvent: 1. Where a person taken on a ca. sa. is in the hands of the officer making the arrest; 2. Where the person is actually imprisoned in jail on such arrest.</p> <p>After a debtor has given a bond for the prison limits, he is no longer in the hands of the officer, and the latter has no control over him.</p> <p>A discharge by a magistrate of a person who has given bond for the prison limits, is, under the R. S. 1843, unauthorized and void.</p> <p>The actual imprisonment in jail spoken of in the R. S. 1843, means confinement in the jail of the county, properly so called, as distinguished from the “ prison limits.”</p>

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

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

<p>The infringement by the sheriff of a positive law, while acting in his official capacity, is such a violation of his duty as amounts to a breach of his bond.</p> <p>Indictment against a sheriff, predicated upon s. 5, c. 104, acts 1841, which was revived and continued in force by an act of 1844. The indictment, after setting out a decree, &c., in favor of, &o., and against the unknown heirs of one A., the issuing of an execution and the levy thereof on a certain tract of land, charged that the sheriff, while acting as such, during the sale of said land, unlawfully and knowingly did, <fcc., procure one B. to bid off and buy said land at said sale for the use and benefit of him, the sheriff, and that B. did then, &c., bid off and buy the land for the sheriff, with the intention then and there to cheat and defraud said unknown heirs, &a , in the sum of, &c. The sale was alleged to have been made on the 18(h of May, 1850, and the indictment was found at the April term, 1852. Held, that the section of the act upon which the indictment was founded, created two distinct offences; one for being knowingly guilty of an act or omission amounting to a breach of his official bond, which is punished by fine; the other for being guilty as aforesaid, with intent to defraud or injure any person, &c., which is punished by fine and imprisonment; and that the first offence was well described, but the latter was not. But, held, that the prosecution for the first offence was barred by the statute of limitations.</p>

<p>It is unnecessary to examine the validity of a special plea where all the evidence admissible under it has been admitted under the general issue.</p> <p>A. was elected, at the regular election in 1849, a district trustee, under s. 39 of the act of 1849, to increase and extend the benefits of common schools. No election was held in 1850. Held, that A. was thereby continued in ofiice, and that an appointment by the township clerh of anotherperson in his stead, under the act of 1850, amendatory of said section, was void.</p>

<p>A judgment against an administrator, as such, to be paid out of the estate of the deceased, is not substantially, but merely nominally, a judgment against him: it is a judgment against the estate upon which he administers, and is never to be paid unless the estate is able to pay it.</p> <p>Such a judgment was not, by the R. S. 1843, repleviable.</p> <p>A person, by acknowledging himself a replevin bail upon such a judgment, did not, under the R. S. 1843, become liable for the debt.</p>

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

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

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

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

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

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

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

<p>The fact that a party recognized for a crime by a justice of the peace has been subsequently recognized by the same justice upon another charge, for a matter which was part of the same transaction, will not discharge the first recognizance.</p> <p>Where a complaint made before a justice of the peace shows that the act charged iftight be either of several crimes, the justice may elect for which he will recognize the party, and a recognizance to appear and answer for either will be valid.</p>

<p>The internal improvement act of 1836, except so far as it conflicts with the acts transferring the various public works, has not been repealed; and the Supreme Court has constantly regarded it as entering into and forming a part of the various acts conveying away, for construction, the public works, so far as consistent with those acts.</p> <p>A proceeding properly instituted for the recovery of a claim, but voluntarily abandoned, cannot be made available, in an action subsequently brought, to save the claim from the bar of the statute of limitations.</p> <p>The White Water Valley Canal Company, in 1845, took possession of certain land of the plaintiffs, for the construction of their canal, and, in the prosecution of the work, diverted water from his mills. In about eighteen months afterward, the water was returned to the plaintiffs, and to its natural channel, by a freshet that washed away the canal; but the company, in 1849, in repairing the canal, again diverted the water as they had previously done. Held, that the statute of 1836, enacting that applications for damages for property taken for the construction of the public works, should be made within two years next after the same was taken possession of, or they should not be paid, commenced running at the first diversion of the water in 1845.</p> <p>That statute is not founded upon the presumption that the damages have been actually paid within the two years, but upon the ground that two years is a reasonable time for asserting the claim, and that, if it is not asserted in that time, it should be disregarded, aid the cost of the public works thereby lessened.</p> <p>The legislature had the power to enact such a law.</p> <p>Where private property is taken, for public use under the authority of a statute which points out the mode in which compensation shall be made therefor, that mode, and no other, under the constitution of 1816, could be pursued to obtain such compensation.</p> <p>The reason of this rule is, that as the law authorized the property to be taken, the corporation appropriating it committed no wrongful act, and hence the common-law doctrine as to cumulative remedies is not applicable.</p>

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

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

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

<p>Where the plaintiff grounds his right of action on a negative allegation, the establishment of which is an essential element in his case, he is bound to prove it, though negative in its terms.</p>

<p>A. and B. having mutual accounts between them, B. died, and C. was appointed his administrator. C., afterwards, as administrator, executed to A. a note payable out of B.’s estate. Held, that the note was prima facie evidence of a settlement of the mutual accounts, and of the amount found due on the settlement.</p> <p>To impeach a note founded upon the settlement of mutual accounts, it is necessary to show some mistake or fraud in the settlement.</p>

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

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

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

<p>An agreement to lease land for the term of two years, at a rent equal to the full rental value of the premises, the occupation to commence at a future day, is an agreement relating to an interest íd land, and under s. 16, c. 28, E. S. 1843, and notwithstanding the exception in that section relating to leases not exceeding the term of three years, to be valid, it must be in writing.</p> <p>A snit will not lie upon an oral agreement for such a lease on account of the refusal of the lessee to deliver possession of the premises at the time appointed.</p>

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

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

<p>The plaintiff below came to the depot of the defendants’ railroad at S., with his wagon, to haul to the town of R. a load of dry-goods, and was directed by the defendants’ agent who had charge of the depot, where to bach his wagon and receive the load. While he was engaged in loading the wagon, at the place designated, through the defendants’ negligence it was run into by the defendants’ cars and seriously damaged, so as to be unable to convey its load. In an action on the case the Court, upon these facts appearing, instructed the jury that the measure of damages was the damage done to the wagon, the loss of the trip in which the plaintiff was engaged, and the loss of the use of the wagon until, by proper diligence, the plaintiff could get it repaired. Held, that the instruction was correct.</p>

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

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

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

<p>Money collected by a sheriff upon an execution in favor of A., and paid over by the sheriff to the clerk of the Circuit Court from which the execution issued, is not subject to levy, while in the hands of the clerk, upon an execution issued against A.</p> <p>The identical money paid by the sheriff to the clerk in satisfaction of an execution does not, by such payment, vest in the execution-plaintiff as his property.</p>

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

<p>Where a special plea is demurred to, but the matter alleged in the plea is admissible under the general issue, which is pleaded, it is immaterial what, or whether any, disposition was made of the demurrer.</p> <p>Assumpsit against the maker of a note. Plea, the general issue. The declaration described the note as made by Ephraim S. Muirhead, and the plaintiff offered in evidence a note signed E. S. Muirhead. Held, that the note was admissible as conducing to prove the issue on the part of the plaintiff.</p> <p>Where the verdict and judgment are fully supported by the evidence, it is immaterial what instructions the Court gave to the jury.</p>

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

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

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

<p>By the 5th specification of the 8th section, of the act of 1846 ,cto provide for the funded debt of the state of Indiana and for the completion of the Wabash and Erie canal to Evansville,” it was enacted that from and after the first of January, 1853, an account of the tolls and revenues of, and the expenditures on, that portion of said canal between Lafayette, inclusive, and the Ohio state line, should be kept separate and apart from a like account of that portion between Lafayette, exclusive, and Evansville; and from that time the tolls and revenues derived from the first-named portion, after defraying expenses, &c., should first be applied to make the full interest of five per cent, on the certificates of stock which might be issued for bonds then outstanding and known as Wabash and Erie canal bonds. The interest was payable on the first days of January and July. By the tenth section of the supplemental act of 1847, the scale of distribution above set forth was changed, but there was a proviso saying the just rights of the holders of bonds outstanding and known as the Wabash and Erie canal bonds as provided for in said eighth section. The relator being the owner and holder of 56,712 dollars of the stock of said canal issued in place of principal and interest of the original bonds of said canal surrendered to the state for cancellation in exchange for said stocks, pursuant to the act and supplemental act above named, demanded of the trustees the interest on said stock from the first of January, 1853, to the first of July of that year, between which periods the trastees kept an account of the tolls and revenues of, and the expenditures on, that part of the canal between the Ohio state line and Lafayette, which amounted to more than enough, after defraying necessary expenses, repairs and outlays, to pay 5 per cent, interest per annum on the certificates of stock issued on account of the original bonds surrendered and known as Wabash and Erie canal bonds. A large sum, however, was necessary to finish the canal from Lafayette to Evansville, and for the work done the trustees were indebted; and, besides the stocks issued on the surrender of the original Wabash and Erie canal bonds, various other stocks were issued under the act referred to.</p> <p>Held, that the trustees should have paid the interest demanded, and that, having refused, a mandamus would lie to compel them to pay it.</p>

<p>Where the evidence fully supports the verdict, the judgment thereon will not be reversed on account of an instruction given to the jury which was not strictly correct.</p>

<p>Debt upon a writing obligatory. Plea, that the writing, with three others of like amount, were made by the defendant as the consideration-money of a lot, in, &a., and for no other consideration; that at the time of the purchase and of the execution of the writing obligatory, the plaintiff agreed to convey the lot to him upon the payment of the purchase-money, as specified in said several writings obligatory; that all said notes had been paid except the one sued -on, before the commencement of the suit. Averment, that before the commencement of the suit the plaintiff did not convey, nor execute a conveyance or tender it upon full payment of the purchase-money or on any other condition. Held, that the plea was valid in bar of the action.</p>

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

<p>Action for money bad and received. Pleas, payment and the statute of limitations. Replication to the latter plea, that the cause of action had been concealed, &c. Held, that the receipt of the money was admitted. Held, also, that the bar of the statute of limitations was admitted, and the question simply presented whether there had been a concealment which would take the case out of the statute.</p> <p>In an action by an administrator to recover a debt due to the intestate, the declaration concluded “to the damage of the plaintiff, administrator as aforesaid,” &o. No objection was made to the declaration in the Oircuit Court, the counts showed plainly enough that the plaintiff was suing as administrator, and the judgment was rendered in the proper form. Held, that the judgment ought not to be disturbed.</p> <p>The defendant, against whom a verdict was rendered, was present in person and by counsel, at the impanneling of the jury and at the trial, and upon a motion made by him to set aside the verdict and grant a new trial, no objection was made to the cause having been tried by an improper number of jurors. Held, that he could not, therefore, object, on error, that the cause was tried by eleven instead of twelve jurors.</p> <p>In a civil case, the objection that a cause was tried by less than the competent number of jurors, will be held to be waived, as against the party who consented thereto.</p> <p>The record of a cause stated that the jury that tried it was composed of twelve persons, but in enumerating the names, upon the assumption that each juror’s Christian name was intended to be prefixed, only eleven were mentioned. Held, that the presumption still was that the jury was composed of twelve persons.</p>

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

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

<p>Courts of Common Pleas have not jurisdiction, under the R. S. 1852, over oifences committed before the act establishing said courts took effect.</p>

<p>The declaration in a suit brought by a foreign administrator, need not, under the E. S. 1843, state that the plaintiff produces and files, &c., a copy of his letters, <Sne.</p> <p>The statute requiring the production and filing, &c., by such administrator of a copy of his letters, applies only to the rules of evidence and not to those of pleading.</p> <p>Suit upon a note payable nine months after date. Averment, that “ although said sum of money has been long since due and payable,” yet, <fcc. Held., that it sufficiently appeared that nine months had elapsed from the date of the note.</p> <p>In a suit by an administrator upon a promissory note given to the intestate, a breach in the declaration that the same is wholly due and unpaid, is a sufficient denial of its payment to the intestate.</p>

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

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

<p>To sustain an action for forcible entry and detainer, it is not necessary to show a legal title to the property, a peaceable possession when the wrong was committed being sufficient.</p> <p>Proof that a person is acting notoriously as a public officer, and is generally recognized as such, is prima facie evidence of his official character.</p> <p>School districts being public corporations, organized under a public statute, the courts will judicially take notice of their organization.</p> <p>Trustees of a school district, appointed by the township clerk, held their office, under the E. S. 1843, until their successors were elected and qualified.</p>

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

<p>Possession of a promissory note, not indorsed, is prima facie evidence of ownership, and prima facie entitles the possessor to payment.</p> <p>Where the payee of a note, having transferred it to another person by delivery, afterwards receives payment of the note, the equitable owner may recover from him the money, in an action for money had and received.</p> <p>The admissibility of evidence need not be examined, where, without regard to it, the other evidence fully sustains the judgment.</p>

<p>Where a defendant has been convicted of larceny on information filed under the R. S. 1852, without any affidavit or other sworn charge, the judgment, on motion, will be arrested.</p>

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

<p>Where the substantial matters alleged in a bill for an injunction are positively denied by tlie answer, the injunction should be dissolved.</p>

<p>A person cannot be punislied for tbe doing of an act, which, at the time of its commission, was not prohibited by law.</p> <p>The boards of commissioners were authorized by ss. 3 and 4 of the act to regulate taverns and groceries contained in the R. S. 1838, to grant licenses, to continue one year, to retail spirituous liquor.</p> <p>Those sections are continued in force by section 15 of chapter 59 of the R. S. 1843.</p> <p>There is no subsequent law in conflict with these sections.</p>

<p>By the R. S. 1852, sheriffs are entitled to mileage for taking a convict to the state prison, for each mile they may necessarily travel in going to and returning therefrom.</p> <p>The provisions of s. 1, c. 37, R. S. 1852, vol. 1, and s. 1, c. 70, of the same volume, regulating sheriffs? fees for taking convicts to the state prison, are not repugnant to each other, and are to be construed in pari materia.</p>

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

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

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

<p>Tlie vendee of land, wbo bad not paid all the purchase-money nor received a deed, died in 1829, leaving a widow surviving him. Held, that the widow had only an equitable right, under the statute, to be endowed of the interest during her life of one-third of the amount the land would sell for over the unpaid purchase-money, interest and costs. Held, also, that her claim might be compromised and discharged by a parol agreement with the vendor or his assignee.</p>

<p>Where a series of long and complicated dealings is involved in a trial, the verdict of the jury, unless grossly unjust or founded in palpable mistake, will not be disturbed by the Supreme Court, notwithstanding the plaintiff may have remitted a part of the verdict.</p> <p>Where on a careful review of the evidence given in a cause the conclusions of the Supreme Court would differ widely from those of the jury, it is still deemed safer to defer to their decision.</p> <p>Where the verdict is in accordance with the evidence, it is immaterial what instructions were given or refused.</p>

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

<p>Wliere a party has had ample time to prepare for trial, and witnesses by whom he could have proved important facts were in his neighborhood, and being aware of their knowledge of such facts, he did not examine them on the trial, on account of a distrust of his ability to elicit the truth, he cannot obtain a new trial in order to avail himself of their testimony.</p> <p>A verdict will not be set aside to admit evidence to impeach the credit of a witness, unless such evidence is strong, and pointed directly to the merits, so as to raise a violent presumption of its being successful with the jury.</p>

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

<p>Debt against a clerk of the Circuit Court and his sureties on his bond, for his failure to account for the amount of a judgment in favor of A. received by him. The defendants proved payments made by the clerk as follo-ws: 1. That on October 4,1842, the clerk deposited 100 dollars in bank to A.’s credit; 2. A receipt of A., indorsed on the record of the judgment, for 175 dollars, -without date. Held, that it -was a question for the jury, ■whether the sum deposited in bank -was included in the receipt.</p> <p>The verdict of a jury -will not be disturbed unless there is a clear and manifest preponderance of evidence against it.</p>

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

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

<p>The R. S. 1838 did not give to the undertaking of a replevin-bail in a justice’s Court the force of a judgment, but merely that of an obligation to pay the judgment, if it could not be made by an execution against the principal.</p> <p>A joint execution could not, under the R. S. 1838, be issued by a justice of the peace against a judgment-debtor and his replevin-bail.</p> <p>Before the plaintiff could proceed by scire facias, under the R. S. 1838, against a replevin-bail, before a justice of the peace, it was incumbent upon him to have an execution against the principal returned “no property found,” &c.</p> <p>A party prosecuting a scire facias against a replevin-bail upon an alleged revived judgment against the principal, may be required to show that the judgment has been revived.</p> <p>A proceeding by scire facias to revive a judgment, is a suit in which the defendant is entitled to notice, and to appear and plead, and to have a trial of the issues.</p> <p>Such proceeding falls within the cases in which the statute fixes a time within which a justice shall render judgment.</p> <p>The failure of the justice to enter such judgment, within the period required by the statute, works a discontinuance of the suit.</p> <p>The justice cannot afterwards amend by entering up the judgment as of a period within that fixed by the statute.</p> <p>In October, 1838, A. became replevin-bail upon a justice’s judgment. In a proceeding by scire facias, in 1849, for an execution against the bail, he pleaded the statute of limitations. Held, that the plea was properly rejected.</p>

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

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

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

<p>Declaration in covenant by tlie obligee against the makers of an agreement under seal, dated May 8, 1845, by which the makers promised to pay the obligee 217 dollars and 50 cents, in good farming land in Tippecanoe county, or the adjoining counties, or in town lots in Lafayette, within two years from date—the lands and lots tobe appraised at their fair value by appraisers appointed by the judge of the Probate Court and sheriff of the county for the time being. Breach, that although the time for the payment of said sum, &o., had long since elapsed, yet the defendant had not paid, <&c., in the manner specified, or in any other manner. Pleas, 1. That the defendant, on the 8th of May, 1847, at, &o., paid to the plaintiffs said 217 dollars and 50 cents in said agreement mentioned, in manner and form as therein specified. Conclusion to the country. 2. That he had at all times, &o., and still held himself in readiness to convey to the plaintiffs a sufficiency of good farming land in Tippecanoe county, or the adjoining counties, or town lots in Lafayette, fully to pay said sum, but the plaintiffs had never demanded any conveyance, &c. 3. That the plaintiffs had not pointed.out or designated to the defendant, or expressed to him a preference for any property to satisfy the agreement. 4. That the plaintiffs had not, at any time, offered the defendant an opportunity to consult with them as to a suitable quantity or quantities, or location or locations, of land to satisfy said agreement, <fcc. 5. Tliat on the 1st of July, 1849, the plaintiffs agreed to receive land in discharge of said agreement, and on that day the defendant offered them a sufficiency of land in Benton county (describing it) to satisfy said agreement, and also offered to convey the same to them in satisfaction thereof, and they agreed to receive said lands as a settlement; but afterwards refused without cause, &c. Special demurrer to the first plea, assigning, 1. That the plea alleged performance, without stating the special manner, &o. 2. That it should have concluded to the country. General demurrer to the residue of the pleas. Held, that the special causes of demurrer to the first plea were well assigned. Held, also, that the other pleas were bad. Held, also, that the declaration was not objectionable for not alleging that the plaintiffs had been willing to receive the land; to attend and sanction an appraisement of it, and receive any just award that might be made.</p>

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

<p>A cliarge, in an information for gaming, that A. lost, <fcc., upon a game at cards, is not supported by evidence establishing that A. and another jointly lost, &c.</p>

<p>An affidavit for surety of the peace alleged that the complainant verily believed and actually feared, &c., that A. B. would kill him, or do him great bodily injury, or procure others to do so, &c. Held, that the charge was bad for being in the alternative.</p>

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

<p>Proceeding before a justice of the peace, under the act of 1847, for a writ of ne exeat. The affidavit did not contain an allegation that the defendant was taking with him property subject to execution. The defendant having, upon the requirement of the justice, given special bail, after-wards but within thirty days from the decision of the justice, took an appeal to the Circuit Court. The plaintiff, in the Circuit Court, moved to dismiss the appeal. The motion having been overruled, the defendant (who had not objected to the affidavit before the justice) moved to dismiss the suit for the omission in the affidavit of said allegation, whereupon the plaintiff interposed a motion to amend by supplying the omitted allegation. Held, that the motion to dismiss the appeal was properly overruled. Held, also, that the amendment of the affidavit should have been allowed.</p>

<p>Suit by the assignee against the maker of a promissory note. Pleas, 1. That the note was given for part of the consideration of the purchase of a patent, called, &a., which the seller represented to the defendant would he valuable to him in connection with his trade as a carpenter, and that it was not valuable, &c. 2. That at, &a., it was agreed, áse., that the note should be paid in carpenter work, and that, before the as- ' signment of it, the defendant fully paid the same, according to said agreement. 3. That after the note was executed, it was agreed that the same should be paid in carpenter work, and that, before the assignment thereof, the defendant, in accordance with the terms of said agreement, fully paid and satisfied the same. Held, that the first plea was bad; and that the second and third were good, at least upon general demurrer.</p> <p>In a suit upon a written instrument, a plea which attempts to set up in bar a parol contemporaneous agreement, is bad.</p> <p>A judgment will not be reversed because an immaterial special plea was not replied to.</p> <p>The patent act of 1836, requiring the assignment of a patent to be recorded within three months from its execution, is merely directory, and for the protection of bona fide purchasers, and does not require the recording of an assignment within that time as a prerequisite to its validity.</p>

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

<p>Am information for retailing spirituous liquor without license, was founded upon an affidavit alleging that the defendant did, on, &o., at, &o., unlawfully keep a certain house wherein spirituous liquors were sold, directly and indirectly, without license, in a less quantity than one gallon; and had, by himself and bar-keeper, suffered the same to be drank in and about said house and premises, and sold the same to A. B., to-wit, one drink, &c. Held, that the affidavit did not support the information.</p> <p>An information for retailing spirituous liquor without license, contained no averment of the price for which the liquor was sold. Held, that the information was defective.</p>

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

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

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

<p>Bill to foreclose a mortgage upon premises a part of which liad been aliened after tlie execution of tbe mortgage, but before the filing of the bill. Decree for the sale of the whole premises. The record did not show that the part of the lot not aliened was sufficient to discharge the amount of the decree and costs, nor that the Court improperly exercised its power in decreeing the sale of the whole. Held, that under the R. S. 1843, the decree was not objectionable.</p>

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

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

<p>In slander for words charging the plaintiff with, perjury in his testimony given at a trial, it is a sufficient defence to show that the plaintiff was not sworn at the trial.</p>

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

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

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

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

<p>Action upon a written agreement whereby the defendant agreed to deliver to the plaintiffs a specified quantity of merchantable shelled corn, at Lafayette, within a designated period and for a specified price. Plea, that at the time of making the agreement, the plaintiffs agreed in writing with the defendant, that in consideration that the defendant would deliver to them at Lafayette said quantity of merchantable shelled corn, they would pay to the defendant said price per bushel, and furnish the defendant a thresher to thresh the corn, for 1 cent a bushel; and that they failed and refused, on request, to furnish the thresher, whereby the defendant was disabled from performing his contract, &c. Held, that the plea was sufficient.</p>

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

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

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

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

<p>Where land of a judgment-debtor is sold at sheriff’s sale to satisfy the judgment, the record is constructive notice of all the proceedings under the judgment.</p> <p>A judgment-debtor whose land was levied upon by an execution, procured a third person to bid off the land at the sheriff’s sale, with a privilege to him to redeem, &c., and afterwards continued in possession. Held, that his possession was not adverse as to the purchaser.</p>

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

<p>An examining magistrate could require two or more persons to enter into a joint recognizance to appear and answer to an indictment for murder, when the law authorized a joint trial of persons charged with being jointly concerned in the commission of that crime.</p>

<p>The act to regulate the retailing of spirituous liquors, &c., approved March 4, 1853, does not prescribe any penalty for selling spirituous liquors on Sunday.</p> <p>Crimes and misdemeanors, in this state, must be defined, and the punishment therefor fixed, by statute, and not otherwise.</p>

<p>Tlie law in relation to exceptions in a statute is, that if the exception be contained in a subsequent clause or statute, it is matter of defence, and need not be negatived in the information; but if it be closely connected with the enacting clause, or if it be in the same clause of the act which creates an offence, it is necessary to show by negative averment that the defendant is not within the exception.</p> <p>An information under the first section of the liquor act of 1853, for retailing spirituous liquor without license, did not aver that the liquor was not sold for sacramental, mechanical, chemical, medicinal, or culinary purposes. Held, that the information was bad on motion to quash.</p> <p>An information for retailing spirituous liquor should state the price for which the liquor was sold.</p> <p>An information for retailing under the liquor act of 1853, stated that the defendant sold less than a gallon, without otherwise specifying the quantity. Held, that the information was bad, on motion to quash.</p>

<p>The defendant was convicted for retailing, under the first section of the liquor act of 1853, neither the affidavit nor the information alleging that the liquor was sold for mechanical, medicinal, or culinary, &c., purposes. That section provides that no person shall retail spirituous liquors, except for sacramental, mechanical, chemical, medicinal, or culinary purposes, without filing with the auditor his bond, &c. Held, that the conviction was wrong.</p>

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

<p>In. an indictment for an affray, it is sufficient to allege the county where the offence was committed, without specifying the township.</p>

<p>Jennings county is one in which by the act of January 16, 1849, exclusive original jurisdiction, in cases of assault and battery, is vested in justices of the peace.</p>

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

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

<p>The Bank of Vincennes conveyed a tract of land to certain persons in trust to sell, under the direction and for the benefit of the United States, and to convey the same in fee simple to the purchaser and his heirs; but the deed did not, in terms, convey the land to the trustees and their “heirs.” Held, notwithstanding, that the deed passed the fee to the trustees.</p>

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

<p>A, having executed to B. a bond for the conveyance of land, upon, which C. was a surety, C. afterward executed a bond to A. for the conveyance of certain other lands so soon as A. should have made the deed to B. in pursuance of his bond. Held, that C.’s agreement to convey to A. was gratuitous and void.</p> <p>The plaintiff cannot recover in chancery on a ground not taken in his bill.</p>

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

<p>After judgment in ejectment in the Circuit Court for the lessor of the plaintiff, the defendant filed a petition under the occupying claimant law, which was resisted; and the president judge being absent, the associate judges, who were divided in opinion, placed the result of their deliberations upon the record as follows: Being divided in opinion we cannot agree upon the propriety of allowing or overruling said motion. Then followed the petition. No judgment was rendered, nor motion interposed at the proper time for a new trial, nor bill of exceptions taken, nor was the evidence inserted in the record.</p> <p>Held, that there was no action of the Court from which either party could appeal or prosecute a writ of error.</p> <p>Held, also, that in legal contemplation, the petition was still pending in said Court; and, semble, that on motion a judgment might yet be entered nunc pro tunc, or the petitioner might have the petition docketed and proceed de novo.</p> <p>Semble, also, that after judgment in ejectment, a proceeding commenced under the occupying claimant law of 1843 is invested with the attributes of an independent action, and may, the judgment in ejectment being suffered to rest, be the subject of an appeal to the Supreme Court. Semble, also, that an appeal by the defendant from the judgmentin ejectment could not be taken as a waiver of his claim as an occupying claimant.</p>

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

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

<p>The making of a promissory note on Sunday is common labor within the meaning of s. 123, c. 53, R. S. 1843.</p>

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

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

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

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

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

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

<p>A. conveyed his farm to B.,his son, by deed, for the nominal consideration of 1 dollar. At the same time, B. executed a-bond to A., in which, after reciting the conveyance, in consideration thereof, he bound himself to cultivate the farm in a husbandlike manner, and to deliver to A., during his life, one-third of the produce, &c. B. having failed to deliver the produce as stipulated, A. filed his bill to cancel the deed and for an account, &c. B. proved upon the hearing the payment of a small amount of money upon the land, but admitted in his answer that the principal consideration was the execution of the bond.</p> <p>Held, that the deed and bond were but parts of one contract, and were to be treated as a single instrument.</p> <p>Held, also, that B. held the land upon a condition subsequent, that he would, in all things, substantially comply with his covenant.</p> <p>Held, also, that B.’s failure to perform the covenant was a breach of that condition and worked a forfeiture of the estate.</p> <p>Held, also, that chancery might properly interfere to set aside the conveyance.</p> <p>Held, also, that upon setting aside the conveyance, an account should be taken, and B. should be allowed for the money consideration paid by him, with interest, and for his improvements, and all rents paid; and that he should be charged with the rents of the whole farm, including the part cleared by him, from the time he went into possession.</p>

<p>Where several pleas filed are substantially the same, the Court may, on motion, set aside all but one.</p> <p>It is not error to refuse a motion to suppress a deposition, where no objection to the deposition is pointed out.</p>

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

<p>Proceeding by a surety against his principal, under c. 51, R. S. 1843, by notice and motion. The notice recited the recovery of judgment by A. against B., as principal, and 0., as surety, in the Union Circuit Court, the payment of the judgment by C., and the notice given by the surety to the principal to show cause, &c. Held, that the statute had been substantially pursued.</p>

<p>Bank notes received by a justice of the peace in payment of a judgment, are not, while in his possession, subject to levy upon an execution against the judgment-plaintiff.</p> <p>To an action on the official bond of a justice of the peace for his refusal to pay over to a judgment-plaintiff bank notes received by him in payment of the judgment, it is no answer, that the notes were taken, while in his possession, upon an execution against the plaintiff.</p> <p>Suits upon the official bond of a justice of the peace were required by the R. S. 1843 to be brought in tire name of the state for the use, or upon the relation of, the party interested.</p>

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

<p>A judgment, where the cause is tried by the Court, can be set aside only on the same preponderance of evidence that would invalidate a verdict. Where the record does not profess to set out all the evidence, its insufficiency to support the judgment cannot be assigned for error.</p>

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

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

<p>A. having been indicted in twelve cases for retailing spirituous liquor, the indictments were all by consent submitted, at the same time, for trial to a jury. The testimony of a witness was heard, the jury found the defendant guilty upon nine of the indictments and assessed a separate fine in each case, and judgments were rendered accordingly. Held, that a separate jury fee, docket fee, and witness fee were taxable on each of the judgments against the defendant.</p>

<p>A marriage may be presumed from cohabitation and reputation; but the presumption, like other presumptions of fact, may be rebutted.</p> <p>Where a cohabitation is shown to have been known by the parties to be adulterous in its origin, a lawful wife being then alive, no presumption of the death of, or a divorce from, such wife will be indulged in favor of the guilty parties.</p> <p>Affirmative evidence is necessary in such a case to establish the death of, or a divorce from, the lawful wife.</p> <p>It will not be presumed, in order to establish a presumptive marriage, that either the parties or officers violated the law.</p> <p>The clerk of one county could not, under the R. S. 1843, issue a license for the marriage of a female who was a resident of another county.</p> <p>A release of real estate is not valid unless a grantee is in some way designated.</p>

<p>It is too late, after a motion in arrest of judgment, to move for a new trial.</p>

<p>The surety on a promissory note took a mortgage upon real estate from the principal, by way of indemnity. A judgment having been afterwards obtained upon the note, and an execution having been returned nulla bona, the assignee of the judgment afterwards obtained a decree for the sale of certain land, to satisfy the judgment, which the surety had conveyed to a third person to defraud his creditors. The land was sold upon the decree and the judgment satisfied out of the purchase-money. The principal having sold the mortgaged premises to a third party, after the mortgage was recorded, the surety filed his bill of foreclosure to recover the amount of the decree. The grantee was a party in the cause wherein the land fraudulently conveyed by the surety had been ordered to be sold. Held, that the bill would lie.</p>

<p>The Supreme Court has no jurisdiction under s. 119, p. 377, 2 vol. R. S. 1852, to correct an alleged error in the finding of the Court, in a criminal cause, where the defendant has been acquitted.</p>