Volume 5 — Blackford's Indiana Reports

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

<p>The plea of nil debet, in an action of debt on a bond, cannot bo treated as a nullity, nor rejected on motion. It is bad, however, in such case, or) demurrer.</p>

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

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

<p>Sill in chancery on a title-bond against A.-the obligor, and his subsequent grantee B., for a conveyance in fee of certain real estate; and a decree for the complainant according to the prayer of his bill. B. filed a bill of review on newly discovered evidence, showing that the original complainant had no right to such a title as the decree gave him. Held, that the newly discovered evidence was relevant to the issue in the first cause.</p> <p>A bill of review for an error apparent on the face of the record, must be filed within five years from the date of the decree, — that being the time limited for writs of error: but if the bill be founded on newly discovered evidence, it may be filed within five years from the time the evidence was discovered.</p> <p>Unless a bill of review on newly discovered evidence, shows that it was exhibited within five years- from the discovery of the evidence, or that the case is within some saving of the statute limiting the time for writs of error, — it is liable to a demurrer.</p> <p>A plea to a bill of review on newly discovered matter, that such matter was known to the complainant in time to have been used in the original cause, is admissible; and, semble, that the defendant may plead to such bill, that the newly discovered matter might, by the use of reasonable diligence, have been known to the complainant in time to have been used in the first cause.</p> <p>It is no objection to the plea in either of those cases, that the facts pleaded had been previously examined on the motion for leave to file the bill of review.</p>

<p>Scire facias to have execution on a justice’s transcript against lands. Held, 1. That the scire facias need not aver that the justice was informed that the defendant had lands; 2. That it is no objection to the scire facias, that the execution of the justice is stated to'have been directed to a special constable; 3. That an averment that the judgment is in force is not necessary.</p>

<p>A defendant against whom a justice of the peace had rendered judgment, and who had appealed, sued the justice for not filing the papers in the appeal in time. The declaration averred that the plaintiff before the justice had no just or legal cause of action against the now plaintiff. Held, that it was no objection to the averment that the subject-matter of the demand or defence in the first suit was not set out.</p>

<p>Assumpsit for goods sold and delivered. The plaintiff proved that he had left his wagon with the defendant for safe-keeping, and that the defendant had converted it to his own use. Held, that the suit was sustained.</p>

<p>To an action for work and labour, the defendant pleaded a submission and an award. The replication, after protesting against the submission, traversed the award. Held, that the submission was admitted by the replication. ,</p> <p>Held, also, that the validity of the award was not affected by its having appended to it an explanation of a matter not acted upon by the arbitrators, nor embraced in the submission.</p> <p>Held, also, that the parties would be estopped from afterwards contesting the validity of the award, — -that matter being in issue and established in this caso. v</p>

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

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

<p>It is not necessary to the validity of a scrawl as a seal, that there should be enclosed within it the word seal, or a letter denoting that word.</p> <p>Debt on a note. Plea, no consideration. Replication, setting out a consideration. Rejoinder, showing a partial failure of consideration. Held, that the rejoinder was a departure.</p> <p>In rendering judgment on a note payable at a certain time after date, witlj 10 per cent, per ann. interest, it is proper to allow interest on the note at that rate from its date to the time of the judgment.</p>

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

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

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

This cause originated before a justice of the peace, and was tried by the Circuit Court, on the plea of not guilty and other pleas, on appeal.

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

<p>A river in this state may he navigable and a pnhlic highway, without its having been declared to be so by the legislature.</p> <p>In a suit against a person for so obstructing a navigable river, as to cause a loss of the plaintiff’s timber, &e., the right to recover must depend, not on the shape, &c. of the timber, but on the fact of the loss of or injury to the plaintiff’s property, such as it was, occasioned by the obstruction.</p> <p>Nor can the plaintiff’s belief or opinion, at the time, as to the practicability of passing the obstruction with his property, affect the defendant’s responsibility for such loss or injury.</p> <p>An action on the case lies for an'injury occasioned by the obstructing of any highway.</p>

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

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

<p>A statement of the demand before a justice of the peace is sufficient, if it 'apprize the defendant of the nature of the claim, and be such that a judgment in-the suit may be used as a bar to another action for the same cause.</p> <p>In a suit by the trustees of a school-district for a tax alleged to be'due from the defendant, the enumeration, of persons and valuation of property in the district, may be shown by one list, and the assessment of taxes by another.</p>

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

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

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

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

<p>In a suit by the plaintiff as assignee of a firm on a promissory note against the maker, the declaration need not state the names of the persons composing the firm.</p>

<p>A copy of the record of a patent for United States' land from the general land office, under the signature of the commissioner, and the seal of the office, is admissible in evidence, if the original patent be lost or destroyed.</p> <p>Sworn copies of affidavits on file in the office of the register of a land office, respecting a pre-emption right, are admissible as evidence in cases in which the originals, could they be procured, would be evidence.</p> <p>The admission of illegal evidence, if it could have no bearing on the merits of the cause, does not render the proceedings erroneous.</p> <p>A land office certificate, under the statute of 1833, is evidence of legal title only in the hands of a bona Jide holder.</p> <p>Lands of the United States which, prior to the 29th of May, 1830, had been proclaimed for sale by the president but which remained unsold, were subject to the pre-emption right conferred by the act of that date.</p>

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

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

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

<p>The pre-emption law of the United States, in force in February, 1833, did not authorise the transfer of a pre-emption right before a patent had issued for the land.</p> <p>A bond was given in 1833 for the payment of a certain sum, in consideration of an improvement previously made on United States’ land, and of the obligee’s promise not to enter the land on which the improvement was made. Held, that the improvement was not a valid consideration for the bond, and that the promise not to enter the land was void as against public policy.</p>

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

<p>If, in a suit commenced before a justice of the peace, the matter in controversy, exclusive of interest and costs, be less than 20 dollars, the Supreme Court has no jurisdiction.</p>

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

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

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

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

<p>A person selected as a talesman to serve on a grand jury, must be either a freeholder or householder.</p> <p>If a grand juror have not all the qualifications required by the statute, it is a good cause of challenge ; or the defendant, before issue joined, may plead the objection in avoidance.</p>

<p>In a suit before a justice of the peace, brought by A. and B. in their surnames only, the defendant appeared and confessed judgment. Held, that as the judgment was by confession, there could be no appeal. Held, also, that the objection to the suit, on account of the omission of the plaintiffs’ Christian names, was waived by the defendant’s appearance and confession of judgment.</p>

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

<p>Assumpsit against A. and B., the former of whom pleaded in bar of the action, and the latter, on whom process had been served, failed to appear. Held, that a verdict and judgment could not be taken against A. alone.</p>

<p>A. and B. entered into a recognizance, by which they acknowledged themselves indebted to the state in the sum of 1,000 dollars each. Meld, that the recognizance was several, and not joint and several. Meld, also, that a joint scire facias will not lie, in such case, against the recognizors.</p>

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

<p>In an action of assumpsit against A., the pendency of a former suit for the same cause brought by the plaintiff against A. and B., though there be a misjoinder of defendants, — may be pleaded in abatement.</p> <p>If the declaration in a suit on a note be so amended as to admit in evidence a different note from that originally described, it is an amendment in substance, and entitles the defendant to a continuance.</p> <p>The judgment on sustaining a demurrer to a plea in abatement is quod respondeat ouster; but when an issue in fact on such plea is found for the plaintiff, he is entitled to a verdict on the merits.</p>

<p>If, in an action of debt on a promissory note, issue be joined on a plea in bar as to part of the demand, and be found for the plaintiff, and there be no answer to the residue, — the plaintiff is entitled to judgment for the amount of the debt with interest.</p>

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

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

<p>A deed executed since 1807, conveying land in this state, is valid between the parties, though it be unacknowledged and be without a subscribing witness.</p>

<p>The declaration in a suit against A. for money lent, showed that the con. tract was entered into with the plaintiff by A. and B. jointly, and that both the debtors Were still living. Held, that, in such case, the suit might be dismissed on motion for the nonjoinder.of B. as a defendant; or that the objection might be made in arrest of judgment, or assigned for error.</p>

<p>The defendant in a suit before a justice of the peace, cannot object to the writ for want .of an indorsement on it of the sum claimed, after he has appeared and pleaded to the action.</p> <p>The declaration in a justice’s Court contained three counts each claiming 50 dollars, and had no conclusion limiting the amount claimed. Held, that the suit should be dismissed for want of jurisdiction.</p>

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

<p>W. Johnson, one of the partners of. the firm 'of Caldwell, Saxon, & Johnson, executed the following note : “ December 7, 1835. One day after date, due J. Sithens 267 dollars and 87 cents for work done on west river bridge. For the company of W. Caldwell, W. Saxon, and W. Johnson.— By me, William, Johnson J Held,, that this note bound the firm.</p>

<p>•á. sold, and by a general warranty deed conveyed, to B. certain real estate, in a part of which the wife of JL.‘>s vendor had an inchoate right of dower. Held, in a suit against B. on his note given for part of the purchase-money, that the existence of such right of dower could not be set up as a failure of thé consideration of -the note.</p> <p>The rejection by the Court of the last of two replications to the same plea, does not entitle the defendant to a continuance of the cause.</p>

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

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

<p>A Circuit Court may adopt a scrawl as the seal of the Court.</p> <p>A sheriff’s deed is good against the execution-defendant and his heirs or devisees, though it be not acknowledged or recorded.</p> <p>If a deed regularly recorded be relied on by a person not a party to it, the record book is admissible to prove the contents of the deed.</p>

<p>A suit was commenced in 1837 on a bond executed in 1810 at Vincennes in this state, where the obligor resided, conditioned to make the plaintiff a title for certain land by the first of July, 1811. Soon after the day last named, the plaintiff, who resided in another state, came to ¡Vincennes and demanded of the obligor a title for the land, but did not obtain it — the obligor himself not having the title. The plaintiff then returned home. The obligor, who was always able to pay his debts, continued to reside at Vincennes until his death in 1821 ; and his legal representatives have resided there ever since.</p> <p>Held that, under these circumstances, it might be presumed that the bond was paid</p> <p>A judgment of the Circuit Court without a jury, will not be reversed on the ground that it is not warranted by the evidence, unless it be obviously wrong.</p>

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

<p>Trespass an the case against A. for erecting a mill-dam upon his premises, which caused the plaintiff’s land to be overflowed. Held, that a license so to overflow the plaintiff’s land could not be presumed to have been granted by him to the defendant, from the circumstance that the plaintiff had not objected to the building of the dam, and had gratuitously assisted in its erection, if he did not then know or could not have foreseen the injury complained of:</p>

<p>The Court has no authority to nonsuit a plaintiff against his consent.</p>

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

<p>The selling of port wine by a less quantity than a quart at a time without license, is not a violation of the statute which prohibits such sale of spirituous liquor. ' .</p>

<p>Several defendants sued in an action on tort may, for good cause shown, have separate trials. And where there have been such trials, the Supreme Court will presume the cause for granting them — the record not showing what it was — to have been sufficient.</p> <p>If to a declaration in trespass for an assault containing but one count, a justification be pleaded, and the plaintiff reply de injuria, he cannot introduce testimony relating to any other assault than the one specified in the plea. To render such testimony admissible when there is only one count, the plaintiff instead of traversing the plea, should new assign.</p> <p>If in such suit against two defendants, one of them has been separately tried and acquitted, the other may, on his trial, examine the acquitted defendant as a witness.</p>

<p>A party cannot assign for error the suppression of his depositions, unless the record show that notice of taking them had been given to his adversary. If the board, of commissioners fail to have any jurors selected for the second week of a term of the Circuit Court, and a jiiry he impanelled. during that week, the array may be challenged.</p>

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

<p>The record of a conveyance, shown to be .a true copy, is admissible evidence for the grantee, — satisfactory proof having been given of the loss of the original, and its execution proved by the subscribing witness.</p> <p>The contents of a written lease in the-hands of a third person cannot be proved by parol, unless such person have been first. subpoenaed to produce the lease.</p>

<p>An agreement under seal made by the holder of a promissory note with the maker, not to sue on the note for a limited time after the same became due, is no bar to a suit brought on the note before the expiration of the given time.</p>

<p>The circumstance that the declaration, in a suit by a corporation, was signed and filed by an attorney at law for the plaintiff, is sufficient evidence that the plaintiff appeared — as a corporation must appear — by attorney.</p>

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

<p>A sheriff advertised certain land to be sold on execution on Saturday the 5th of January, when, in fact, Friday was the 5th of that month. Tho sheriff was informed, before the day of sale, of the error, and promised the execution-debtor to postpone the sale to some day which should be correctly advertised. The sheriff, however, sold the land under the execution on Friday the 5th of January, at public sale, to the execution-creditor. The execution-debtor, apprized of such sale, informed one JL. B. of his (the debtor’s) inability to redeem the land, showed him the boundaries, and consented that he should buy it. Jl. B., afterwards, bought the land of the purchaser at the sheriff’s sale. Held, that if the execution-debtor ever had a right to have the sheriff’s sale vacated on account of the mistake in the advertisement of the sale, (of which no opinion was given,) he had, by his conduct above stated, waived that right.</p> <p>The answer of one defendant to a bill in chancery is not evidence against his co-defendant.</p> <p>A parol agreement to convey land is void by the statute of frauds.</p>

<p>A judge or inspector of an election, who, merely in consequence of an error of judgment, refuses to receive a legal vote, is not liable to a suit for such .. refusal: Miter, if he wrongfully and maliciously refuse such vote.</p>

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

<p>If a person marry, having a former husband or wife living, the second marriage is void.</p>

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

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

<p>Debt on the official bond of a justice of the peace, brought by the state on the relation of «4. against the justice and his surety. The complaint was, that the justice having issued an execution on a judgment against the relator, on which execution the constable to whom it was directed had collected the money and paid it over to the justice, — afterwards issued another execution directed to another constable on tjie same judgment, under which latter execution the relator’s property had been sold. Held, that both the constables were competent witnesses for the plaintiff.</p> <p>Parol evidence of the contents of a paper in the possession of the adverse party is not admissible, unless legal notice have been given him to produce the paper on the trial.</p>

<p>In a suit in a corporate name, the declaration need not aver the plaintiffs to be a corporation.</p> <p>If the defendant, on a demurrer to one of his pleas being overruled, do not ask for a judgment for the costs of the issue in law, he cannot assign for error the omission of the Court to render such judgment.</p> <p>In assumpsit for goods sold and delivered, &c., the plaintiffs proved that the defendant had admitted his receipt of the goods, &c., but had qualified his admission by saying that some of the items in the account should have been credited on a certain written agreement made by him and another with the plaintiffs. Held, that the plaintiffs might give in evidence the written agreement thus referred to by the defendant.</p> <p>When an act of incorporation does not require that the appointment of an agent by the company should be made in writing, and it does not appear to have been so made, the appointment may be proved by parol evidence.</p> <p>The defendant in a suit against him for his separate debt, cannot set off a debt due to him and another.</p> <p>The insufficiency of the evidence to sustain a verdict cannot be assigned for error, unless the record show that it contains all the evidence, and that a motion for a new trial was made and overruled.</p>

<p>An innkeeper is not liable to be indicted for the offence, committed in his absence and -without his knowledge by his barkeeper, of selling spirituous liquor to an intoxicated person.</p> <p>The general rule is, that a master is liable in a civil suit for the negligence or unskilfulness of his servant, when he is acting in the employment of his master; but that he is not subject to be punished by indictment for the offences of his servant, unless they were committed by his command, or with his assent.</p> <p>If the jury, in a criminal case, have a reasonable doubt of the defendant’s guilt, they should acquit him.</p>

<p>A grocer having a license to retail spirituous liquors sold his grocery — agreeing that the buyer should have the benefit' of the license. -Held, that the license was not assignable, and that the buyer had no authority under it to retail spirituous liquors.</p>

<p>Tlie declaration in a suit by the assignee against the maker of a promissory note, after stating the execution of the note on, &c., averred that the payees, John Greenfield Sc Son, then and there indorsed the note to J. V. Greenfield Sc Co., who then and there indorsed the same to the plaintiff. Held, on general demurrer, that the averment was sufficient.</p>

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

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

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

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

The cause was i submitted to the Circuit Court without a jury, and judgment rendered in favour of Hewson, the plaintiff.

<p>A declaration in assumpsit described the written contract sued on to be for the executing of notes for the price of certain books and stationary purchased of the plaintiff by the defendant. The contract produced in evidence was only for the executing of notes for the price of the books purchased. Held, that the variance was fatal.</p>

<p>A person to be entitled to a pre-emption right under the act of congress of 1830, must have cultivated the land in 1829, and have been in possession of it at the time the act passed.</p>

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

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

<p>The Supreme Court has no jurisdiction in any case which originated before a justice of the peace, unless the amount in controversy in the Supreme Court is at least twenty dollars, exclusive of interest and costs.</p> <p>And though the amount so in controversy be more than twenty dollars, still if that amount inclusive of interest and costs be under fifty dollars, the Supreme Court has no jurisdiction unless a supersedeas be granted.</p>

<p>The record showed that the plaintiffs, a corporation, appeared by attorney. Held, that the appearance was sufficient. '</p> <p>If a statute of a private nature contain a clause declaring it a public act, it will be noticed by the Courts as a public act.</p>

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

<p>An indictment charging the defendant with winning the sum of five dollars by a wager, &e., is not sustained by proof that he won the promissory note for five dollars of the person with whom he bet.</p>

<p>Where the process states a special capacity in which the plaintiff sues, the declaration must conform to it; but where the writ is general, the declaration may describe the parties in a particular character.</p> <p>The dismissal of a suit, after the writ has been quashed, is a nullity.</p> <p>The quashing of the writ puts an end to the suit, and is a final judgment which may be reversed on appeal or writ of error.</p>

<p>The declaration in debt on a bond conditioned that the defendant would, on the lsi of June, 183S, make the plaintiff a sufficient deed of conveyance in fee-simple for a certain tract of land, averred that the defendant did not make the deed on the said day nor at any other time, and that the defendant had no title to the land. Pleas, 1st, a tender of the deed on the 27th of October, 1838; 2dly, that on the 1st of June, 1838, and ever since, the defendant was ready to make the deed, but it was not demanded. Held, on general demurrer, that both the pleas were bad.</p> <p>In such case the suit is for the penalty, and the damages laid in the declaration are to cover those to which the plaintiff may be entitled beyond the amount of the penalty.</p>

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

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

<p>Errors in fact may be assigned in eases of wills, but the question arising on the assignment must be determined, not by a jury, but by the Court.</p>

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

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

<p>Indebitatus assumpsit for the price of land sold and conveyed. Plea, the general issue. The facts proved were as follows: In consequence of an agreement between the parties, the plaintiff conveyed to the defendant a tract of land valued at 1,800 dollars, for the price of which this suit was brought; and the defendant, in exchange for said land, gave the plaintiff a bond for a conveyance of a certain quarter section of land valued at 800 dollars, and also paid or secured to him 1,000 .dollars. The conveyance of the quarter section of land, which was situate in a distant part of the state, and which the plaintiff had never seen, was made within the time limited for its execution by the title-bond; but the deed omitted to state the number of the range in which the land was situate, of which omission both parties were then ignorant. The plaintiff discovering afterwards that the defendant had misrepresented, at the time of the contract, the location and quality of the quarter section of land, demanded of him its estimated value, viz. 800 dollars.— offering to return the deed for. the same. The defendant refused to receive the deed or pay the money, but offered to correct the mistake in the description of the land.</p> <p>Held, that the evidence did not sustain the action.</p>

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

<p>The plaintiff cannot give parol evidence of the contents of a written award on which he sues, without accounting for the absence of the award.</p>

<p>It is a rule in pleading, that matters of fact and law must not be so blended that they cannot be separated.</p> <p>In an action for an assault and battery, matters in justification cannot be given in evidence under the general issue.</p> <p>A magistrate who issues a warrant without a sufficient affidavit, is liable to the person arrested under it in an action of trespass. But the person who makes application for the warrant, and who has not been personally concerned in the arrest, can only be sued in an action on the case.</p> <p>It is no objection to a special plea, on general demurrer, that it amounts to the general issue. -</p> <p>If the general issue and a special plea amounting to the general issue be filed, the latter will be rejected on the plaintiff’s motion.</p>

<p>Whenever a statute from which a Court derives its jurisdiction in particular cases is repealed, the Court cannot proceed under the repealed statute even in suits ponding at the time of the repeal, unless they are saved by a clause in the repealing statute.</p>

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

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

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

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

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

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

<p>Suit by Paul Spofford, Thomas Tiletson, and Moses Kimball, on a promissory note. The declaration alleged the note to be payable to the plaintiffs by the name and description of Spofford, Tiletson, & Co. Held, that a note ■ payable on its face to Spofford, Tiletson, & Co. was not of itself sufficient evidence to support the action.</p> <p>A note executed for the defendant by an agent may be described in the declaration as executed by the defendant himself.</p>

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

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

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

<p>ERROR to the Wayne Circuit Court. Mansur was the plaintiff below, and obtained judgment during the term at which the plea was filed.</p>

<p>In a suit by the indorsee against the indorser of a promissory note, negotiable and payable at a chartered bank within the state, the declaration must aver that the note was presented at the bank for payment at the time it became due.</p> <p>The statute of 1836, relative to suits on notes, &c. payable at a particular place, does not apply to suits by indorsees against indorsers.</p>

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

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

<p>A common carrier is not liable for injuries arising from the act of God or of public enemies; and by the phrase “act of God” is meant all unavoidable or inevitable accidents.</p> <p>An exception, contained in a bill of lading of a common carrier by land, “ of unavoidable dangers and accidents of the road,” is not a restriction of his general liability.</p>

<p>A judgment against a person who had no notice of the suit, is a nullity.</p> <p>A misprision of the clerk in not entering, as he should have done, a judgment for the penalty of a bond, may be amended, at any time, on notice and motion.</p>

<p>Debt on a sealed note for the payment of money against the maker. Plea, that the note was given- for the price of fourteen volumes of a certain medical work sold by the plaintiff to the defendant; that by a false and fraudulent warranty that the “work was an improved system of one Samuel Thompson's system of botanic medicine,” the plaintiff induced the defendant to make the purchase; that the work so purchased was not an improved system of said Thompson's system of botanic medicine; that the plaintiff “therein knowingly deceived and defrauded” the defendant; and that said books were of no value to the defendant, by reason of the said work not being an improved system of said Thompson's system of botanic medicine. Held, on general demurrer, that the plea was insufficient.</p>

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

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

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

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

<p>If an officer, acting under a legal warrant, abuse his authority, he becomes a trespasser ab initio.</p> <p>Trespass does not lie against a constable for merely taking too much property under an execution; the remedy for such injury being an action on the caso.</p> <p>If an officer justify in trespass, under a legal warrant, an act' relied on to make him a trespasser ab initio should be new assigned.</p>

<p>A promissory note may be indorsed by an agent, and the indorsement so made may be described in a declaration as having been made by procuration, or as having been made by the party himself. That is the law, also, in the state of Ohio.</p> <p>When a promissory note is made and assigned in one country, and is sued upon in another, the assignee’s title depends on the lex loci contractus.</p> <p>The laws of the state where a promissory note is made and assigned, must govern as to the validity of the defence to a suit brought on the note, in another state, by the assignee against the maker.</p> <p>Pleas to such suit, (the note having been assigned before it was due,) — that the note was made without consideration, and that it was obtained by fraud, are not valid by the statute of Ohio, which is the same on the subject with the law-merchant.</p> <p>Declaration in the usual form in a suit by the assignee against the maker of a promissory note. Pleas, want of consideration, &e. Replication, that the note was made in the state of Ohio, &c. — setting out a statute of that state, which showed the pleas to be inadmissible. Held, that the replication was a departure.</p>

<p>Suit in chancery certified from the St. Joseph Circuit Court.</p>

<p>Debt against Jl. B. on the following obligation : “ Twelve months after date, we, the president and directors of the ‘ Corydon Steam-Mill Company,’ promise to pay C. D. 150 dollars with interest, &e. — gL. B., President [seal] .” Plea, that the defendant executed the contract as president of the board of directors of The Corydon Steam-Mill Company, (a corporation created by statute,) for money lent by the plaintiff to the company for its sole use in carrying on its business; and that the promise was made on behalf of the company in conformity to its by-laws, and under its seal. Held, that the plea was not objectionable as amounting to the general issue; and that it was a good plea in bar of the action.</p> <p>An agent who makes a contract in the name of his principal beyond his authority, or who engages that he himself or his principal will perform a certain thing, assumes a personal liability, though he is described in the contract as agent; and if, on the other hand, being clothed with the requisite authority, he contracts in the name of his principal, the latter only is bound.</p> <p>A promise by the president and directors of “ The Corydon Steam-Mill Company,” made for a corporate debt, and executed by the president of the company, as such, under the corporate seal, in conformity to its by-laws, is a promise by the corporation, for a violation of which it may be sued in its corporate name.</p>

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

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

<p>Debt by the assignee against the maker of a promissory note. Pleas, nil debet, and failure of consideration. Held, that the plaintiff could not recover, without producing, at the trial, an assignment to him of the note.</p>

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

<p>The statute of 1831, entitled “An act concerning free negroes and mulattoes, servants and slaves,” is not unconstitutional.</p> <p>It is the duty of the Court to decide in favour of the constitutionality of a statute, unless' its unconstitutionality is so obvious as to admit of no doubt.</p>

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

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

<p>In a suit against the maker of a promissory note, the declaration averred that the note was payable to E. R. Day, and that E. R. Day assigned it to the plaintiff. Held, that the omission of Day's Christian name did not render the averment objectionable.</p>

<p>Suit by John Proctor, tlie payee, against the maker of a promissory note. Plea, that the note was given to one Nathan Proctor, and taken in the plaintiff’s name by said Nathan, in consideration of 400 dollars in counterfeit bank-bills, sold by said Nathan to the defendant; that the bills were ' of no value; and that said Nathan knew, at the time of the sale, that the bills were counterfeit. Held, on general demurrer, that the plea was good.</p>

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

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

<p>A plea in abatement may not only be filed at any time before the day on which the cause is set for trial, but it may also be filed at any time on that day, whether the Court be in session or not, unless the cause shall have been called in its order and regularly disposed of.</p> <p>It is not necessary that the affidavit, attached to a plea in abatement, should be entitled of the term at which it was filed.</p>

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

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

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

<p>ERROR to the Shelby Cireuit Court. The defendants in error were the plaintiffs in the Circuit Court.</p>

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

<p>An indictment for gaming must state the name of the person with whom the defendant played, or allege his name to be unknown.</p>

<p>If a sheriff fail to return a capias ad satisfaciendum on or before the return day thereof, the execution-creditor may proceed against him, under the statute, by notice and motion.</p>

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

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

<p>A distress may be made after the tenant’s death and administration granted, &c., for rent which accrued in his life-time. And the statute exempting executors and administrators from suit for a year, &c., does not apply to such case.</p>

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

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

<p>A deaf and dumb person, who can be communicated with by signs,' is a competent witness under our statute, if he has sufficient discretion, and understands that perjury is punishable by law, though he has no conception of the religious obligation of an oath.</p>

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

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

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

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

<p>APPEAL from the La Porte Circuit Court.</p>

<p>If in a justice’s Court, the plaintiff’s demand be not within the jurisdiction of the justice, the action should be dismissed; and if the defendant, after crediting the plaintiff’s demand, claim a balance of more than 1Q0 dollars, his set-off should be rejected.</p>

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

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

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

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

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

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

<p>The day fixed by a justice of the peace for the trial of the right of property in goods taken in execution, must be within five days after the claim to the goods is filed; and in reckoning the time, the day on which the claim was filed must be counted.</p>

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

<p>The death of a horse whilst in the care of an innkeeper, to whom he had been delivered by a guest, is sufficient to charge the innkeeper with the loss, unless he can exculpate himself by showing due care on his part.</p>

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

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

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

<p>A- person wishing to avail himself of the provisions of the statute giving to mechanics a lien on buildings, must file in the recorder’s office of the proper county, within sixty days after the debt becomes due, notice of his intention to hold a lien on the property for the amount due him.</p> <p>If in a contract for the sale of goods, no time be given for payment, the law implies a contract to pay for them on delivery.</p>

<p>ERROR to the Cam-oil Circuit Court.</p>

<p>In case of a judgment against a defendant by default for not appearing, the record must show, in. some manner, that process had been served on him. In a suit against several-persons on a joint contract, the plaintiff cannot, in general, entér a nolle prosequi as to one.of the defendants, .and take judgment against the rest.</p>

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

<p>The statute requiring a suit in foreign attachment to be continued for two successive terms after publication proved, is complied with by a continuance of the cause at the term when the publication is proved, and at the next succeeding term.</p> <p>A judgment in attachment, if the defendant did not appear, cannot be made the foundation of a suit.</p>

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

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

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

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

<p>An indictment for unlawfully winning of several persons (naming them) and others, a certain quantity of beef, &c., was held bad for not naming all the persons with whom the bet was made, or stating that the names not given were unknown.</p>

<p>The declaration in a suit by Cunningham Ramsay and John Fattier on a promissory note, described the note as payable to the plaintiffs by the name of Ramsay and Fattier. Held, that a note, payable on its face to Ramsay and Fattier, was not objectionable as evidence on the ground of variance. Held, also, that had the words in the declaration, “ by the name of Ramsay and Fattier,” been omitted, there would still have been no variance as to the names of the payees. Held, also, that the plaintiffs’ possession of the note was sufficient evidence, prima facie, that they were the persons to whom the note was payable.</p> <p>An indorsement on a note by the payees to themselves is a nullity.</p>

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

<p>Assumpsit by JL. against B. for work and labour and goods sold. Plea, a former recovery. Replication, nvl tiel record. On the trial, B. produced the record described in his, plea, which was of an action of assumpsit brought by him against JL. in which' non assumpsit was pleaded, with a notice of set-off for work and labour and goods sold to a larger amount, &c., and in which B. recovered.</p> <p>Held, -that on this evidence the defendant was entitled, under the issue, to judgment. Held, also, that if the matters sued for by A. were not inquired into under the notice of set-off in the first suit, he might have replied that fact. ' ' .</p>

<p>Debt on a promissory note. Pleas, 1. As to part, &e., a failure of consideration in this, viz., that the note was given for the hire of a stallion for the season; that during the season he became sick, &c., and for one month of the time was wholly unable'to perform the service for which he was hired, and was of no use whatever, though reasonable care of him was taken, &c. 2. Failure of consideration in general terms, without showing how the consideration had failed. 3. The same as the first, except that it was to the whole action. Held, that the pleas were bad.</p>

<p>A justice’s judgment in favour of Jones & Wolf against II. II. Greenup was replevied. Held, that the judgment, though irregular, was not’a nullity ; and that a scire facias against the replevin-bail might, with proper averments, be sustained.</p>

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

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

<p>The declaration in debt before a justice of the peace contained four counts, each for the sum of 62 dollars. Held, that the justice had no jurisdiction.</p>

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

<p>A scire facias, issued by a justice of the peace against replevin-bail, need not aver that an execution had issued, &e. against the principal.</p> <p>That the proper execution has not been issued in such case, or the return to it necessary to charge the bail has not been made, may be pleaded in bar to the scire facias.</p>

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

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

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

<p>It is not material' to the offence of failing to file a certificate of the solemnization of a marriage, &c., that a marriage license should have issued.</p>

<p>An indictment for a riot stated that the defendants, on, &c., with force and arms, did unlawfully, riotously, &e., assemble and gather themselves together to disturb the peace of the state, and, being so assembled, did then and there make a great noise, disturbance,,riot, and tumult, and then and there unlawfully, riotously, &c., remained and continued together making such noise, riot, tumult, and disturbance, for the space, &c., and then and there fought through and with each other, &c. Held, that the indictment was sufficient.</p>

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

<p>A sealed note executed in the name of a firm of Is. V. Harter & Co., purports to bind only Harter; and a third person, therefore, executing such note as surety, supposing it to be the note of the firm, cannot complain that a fraud was committed on him, though the note was for the private debt of Harter.</p> <p>The defence of a surety — that the creditor has given time to the principal, &e., is not valid, unless it appear that the agreement for delay was founded on a valid consideration.</p>

<p>A sealed note, though payable at a chartered bank withinlmre state, is not within the statute placing certain notes on the same footing with inland bills of exchange.</p>

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

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

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

<p>A majority of the freeholders of a town,"presented to the board of county commissioners a remonstrance against the granting of a license to any person to retail ardent spirits within the town for three years; and on the day the remonstrance was presented, a license was applied for and granted. Held, that the license should have been refused.</p>

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

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

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

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

<p>A plea to an 'action of malicious prosecution, stating in general terms that the defendant had a probable cause -for the prosecution, is insufficient.</p> <p>In such suit, the facts showing probable cause may be specially pleaded, or may be given in evidence under the general, issue.</p> <p>If in such suit the facts be specially pleaded, and the general issue be also .filed, the special plea'may be struck out on motion.</p> <p>Parol evidence that a person has acted as a justice of the peace, is admissi- ‘ ble to prove him to be such officer.</p> <p>If a warrant issued by a justice of the peace of one county be indorsed, under the statute, by a justice in another county, the indorsement is prima fade evidence that an oath authorizing the indorsement had been previously made.</p> <p>An instruction-to the jury that'the minutes of the testimony taken by the plaintiff’s counsel, and read by him to the jury in the course of his argument, if correctly taken, were evidence, — though not correct in terms, could not mislead the jury and is therefore.no cause for a new trial.</p>

<p>Debt by the state on the relation, &e. on a justice’s bond against the principal and his sureties. Plea, a former recovery by the state on the relation of divers persons, &c. for more than the penalty. Replication, that the present suit was first instituted, &e. Held, that the plea was good and the replication bad.</p>

<p>A person being unable to pay all his debts, may sell his goods bona fide to another, in consideration that the latter will pay the purchase-money to a part of the vendor’s creditors, specifying them, though the preferred creditors have not assented to the sale.</p>

<p>A bill in equity to carry a former decree into execution is proper, when, from the neglect of the parties, or from some other cause, subsequent events have intervened which render the further aid of the Court necessary; and even a person not a party to the decree, when his rights are affected by it, may resort to this remedy.</p> <p>The minor heirs of L. and his administrators obtained a decree, in 1835, against the devisees and mortgagee of JD., deceased, by which the administrators were to pay the mortgagee a certain sum of money within a given time — the latter to release his interest to the devisees in certain land covered by the mortgage — and the devisees, on or before the payment, to convey said land to the heirs, who were in possession. One of the administrators being called on at the expiration of the given time, refused to pay the money to the mortgagee, and the latter then, on receiving a note for it from one of the devisees which was afterwards paid, released to the devisees his interest in the land. In 1837, the devisees brought an action of ejectment against the heirs for the land and recovered; and the latter, soon afterwards, tendered to the former-the money, &c., which was refused, field, that the heirs being all minors, might, by a suit in. chancery, notwithstanding the land had risen considerably in value, obtain an injunction of the judgment in'ejectment, and a conveyance of the land from the devisees, on payment to them of the money, &c.</p>

<p>A petition to the Probate Court for the sale of the real estate of certain minor heirs, though it purport to be by several persons as guardians of the minors, is, if otherwise unobjectionable, sufficient, prima facie, to give the Court jurisdiction; and one of the minors cannot treat an order of sale made on such petition as void, because only one of the petitioners was, in fact, his guardian.</p> <p>The petition in such case, after showing the situation of the real estate of the minors, stated that their interest would be greatly promoted by a sale of the property, and by a reinvestment of the proceeds. Held, that the case was within the statute.</p> <p>That the order of sale of the minors’ property in such case was joint, does not affect the jurisdiction of the Court.</p> <p>The petition for such order showed a case within the statute, and the record stated that on due proof, &c. the order was made; but the evidence was not in the record. Held, that the Court had jurisdiction.</p> <p>That the property in such case was appraised at 400 dollars and sold for 100 dollars, is no objection to the validity of the sale.</p>

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

<p>The provision in the ordinance of 1816, exempting certain lands from taxes for five years from the time of sale, does not apply to land reserved to individuals by an Indian treaty.</p>

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

<p>A person died intestate leaving personal and real estate (not derived by purchase with the estate of or by descent from his father or mother,) without issue, and without father or mother or wife living. Held, that by the statute of 1831, the intestate’s brothers and sisters of the half-blood and their descendants, were entitled to share with his brothers and sisters of the whole blood and their descendants, in the inheritance of the real and distribution of the personal estate of the deceased.</p>

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

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

<p>In the case of a scire facias to have execution against real estate on the transcript of a justice’s judgment, &e., the defendant cannot question the truth of the constable’s return of “ no property” to the execution.</p> <p>If the proceeding in such case be under the statute respecting justices of the peace, (R. S. 1838, p. 375,) the transcript must be filed, but need not be recorded, by the clerk of the Circuit Court, before the issuing of the scire facias.</p>

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

<p>A plea that is bad in part is bad for the whole.</p> <p>The plea of non est factum must be sworn to.</p> <p>A plea in bar by an executor, that he was not appointed executor one year before the commencement of the suit, is good.</p> <p>An objection to a special traverse, that the inducement does not substantially deny the pleading it was intended to answer, can only be reached by special demurrer.</p>

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

Malicious prosecution. The declaration contained two counts. The first stated that the defendant had falsely, &c., and without probable cause, charged the plaintiff with having committed arson by burning the defendant’s barn, &c., — and was in the usual form; the second need not be particularly noticed, as the Court expressed no opinion respecting-it. There were five pleas in bar.

<p>A plea in bar to a suit on a sealed note for the payment of money, stating the note to have been given for certain real estate, and setting forth several representations made by the plaintiff respecting the property, which, it is alleged, were false and fraudulent, — is insufficient if it do not aver a re-conveyance of the property or that which is equivalent.</p>

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

<p>APPEAL from the La Grange Circuit Court.</p>

<p>Evidence though illegal, if admitted without objection, cannot be disregarded on a motion for a new trial.</p> <p>The acknowledgment of a debt, to take a ease out of the statute of limitations, should contain an unqualified admission of a subsisting debt, which the party was then willing to pay.</p> <p>The following acknowledgment, “ The plaintiff might have been paid long ago, if he had not treated me badly,” is not sufficient to take a case out of the statute.</p>

<p>SUIT in chancery certified from the St. Joseph Circuit Court. ‘</p>

<p>In an action for money had and received, to recover back money paid by the plaintiff on a special contract for the defendant’s performance of certain work, the latter may prove under the general issue, in order to defeat the suit, a part performance of his contract.</p> <p>A contract cannot be rescinded by one party for the default of the other, unless both can be placed in the same situation in which they stood previously to the contract.</p>

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

<p>Leave was obtained to amend a plea to a new assignment; the cause tried on the general issue, &c. Held, that the plea to the new assignment must be presumed to have been withdrawn.</p> <p>By the appearance of the parties to a suit, their going to trial, &c., a previous judgment in the cause is vacated, and any objection arising from the want -of a continuance at a former term is waived.</p> <p>The general issue in trespass quare clausum fregit, notwithstanding a subsequent new assignment, continues to be an answer to the whole cause of action.</p> <p>If the judgment for the plaintiff in such suit, on the plea of not guilty, be for less than five dollars, •with full costs, it will be presumed, the record not showing the contrary, that the title to the land came in question on the trial.</p>

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

This suit was ^y j¡{cjiar¿ Wood, John Yarrow, Horatio C. Wood, James Abbot, and Josiah Bacon, merchants, trading under the name and firm of Wood and Abbot, on a promissory note described in the declaration to be payable to the order of the plaintiffs, by their name and description of Wood and Abbot.

<p>A collector of taxes is not indictable for purchasing a county order, &c. at a discount, unless the amount of the order, &e. be expressed on its face.</p> <p>Penal statutes must be strictly construed.</p>

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

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

<p>The grant, by the act of congress of 1816, of sections numbered sixteen commonly called school sections, is not to the state, but to the inhabitants of the respective townships in which the lands lie.</p> <p>If, however, the state sue for a trespass on any such land, the declaration, if in the usual form of declarations in trespass quare clausum fregit, cannot be demurred to, as the state may have acquired, subsequently to such grant, a sufficient interest in the land to maintain the suit.</p> <p>Although the title may come in question in the action of trespass quare clausum fregit, it is not essential to the action that it should.</p>

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

<p>An indictment for passing a counterfeit bank-note, &c. must profess to set out, not the effect, purport, or substance only of the note, but an exact copy of it.</p>

<p>Distinct matters in a plea of set-off are like several counts in a declaration; and if some of the items of set-off lie sufficient and others not, the plaintiff may reply to one part of the plea and demur to another; but a demurrer to the whole'plea would be bad.</p> <p>A plea setting out, as matter of set-off, the plaintiff’s written' acknowledgment of having received from the defendant an order on a lawyer for the proceeds of a claim of the defendant in suit, &c., does not show a subsisting debt due from the plaintiff to the defendant, and is therefore insufficient.</p>

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

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

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

This suit was brought by the state of Indiana, on the relation of Samuel D. Vance and David Clarice, trading under the name and style of Vance and Clarice, against the plaintiffs in error.

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

<p>Me unques administrator may be pleaded in bar of an action brought by an administrator for a cause of action which accrued in the lifetime of the intestate.</p>

<p>If a recognizance, entered into by several persons, be not joint but several only, a joint scire facias against the recognizors cannot be sustained; and the objection, when shown by the scire facias, may be assigned for error.</p>

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

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

<p>The record of a cause in which there were a judgment by default, writ of inquiry, &c., did not show that process had been served, but stated that the parties appeared by their attorneys. At a term subsequent to that in which the final judgment was rendered, the defendant, on affidavits that he had had no notice of the suit, that he had not authorized the appearance, and that he had a good defence, moved that the judgment be set aside. Held, that the motion ought not to be granted, but that an order should be made giving the defendant leave to plead in bar, on or before the calling of the cause at the next term after the order was made, and staying, in the mean time, all proceedings under the judgment, &c.</p>

<p>Where there are several liens on a steam-boat, arising under the statute authorizing the seizure of boats and other vessels for debt, and the boat is sold on a judgment in a suit under the statute for one of the claims, the purchaser takes the boat discharged of the liens.</p>

<p>The real estate of a decedent was sold by the order of a Court of competent jurisdiction, on application of the administrators (there being two of them,) for the payment of debts, the report of the sale confirmed, and a conveyance to the purchaser ordered to be executed. Held, that the circumstance, that notice of the application was served only on the general guardian of the intestate’s heirs, they being minors, and that the sale was reported to the Court by one of the administrators as having been made by him, did not show the sale to be void.</p>

Replevin. Pleas, 1. Property in one W. Harris; 2. Property in the defendant; 3.

<p>If a person undertake to make a steam-engine for two partners to be of certain dimensions and of the best quality, and one of the employers after-wards cause the patterns, about to be used for the castings for the engine, to be altered; and the castings be made according to the altered patterns;'the undertaker will not be responsible for the sufficiency of the engine.</p>

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

<p>Debt on the bond of a justice of the peace, the ground of complaint being that he had not issued execution on a judgment in time. Held, that an averment in the declaration that the judgment was rendered on the 1st of Jlpril, 1836 — that the justice neglected to issue execution thereon till the 16th of May — and that the execution was returned unsatisfied, — was equivalent to saying that, down to the time of the return, the judgment had not been paid or replevied. Held, also, that the justice was bound to issue execution on the judgment within a reasonable time; and that such time had elapsed in this case before the execution issued. Held,, also, that an averment in the declaration, that the justice had been requested to issue an execution on the judgment and had refused to do so, was mere surplusage — a matter which the defendant was not at liberty to traverse.</p>

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

<p>In a suit for work and labour performed for the defendant on the “ Wabash and Erie canal,” evidence of work done for him on the canal south of the Tippecanoe river is admissible.</p>

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

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

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

<p>A defendant may waive the right of set-off given him by statute, and bring a cross action for his demand.</p> <p>An administrator may be sued in chancery for a debt due to the complainant from the intestate.</p> <p>The statute of limitations may be pleaded to a suit in chancery on an unwritten contract.</p> <p>The statute of 1835 relative to the statute of limitations, has relation only to debts when pleaded in defence of a suit by way of set-off.</p>

<p>The testimony of one witness in chancery, when supported by strong corroborating circumstances, is sufficient to counteract a positive denial in the answer..</p> <p>A person represented to a legatee from whom he was about to purchase a legacy, that he had been informed by one c-f the executors of the estate that the legacy was not worth 6,000 dollars, and that it was doubtful whether it was worth 5,000 dollars — which representation was not supported by the fact, — and thereby made on the mind of the legatee an impression which induced him to sell the legacy, worth more than 13,000 dollars, to the person making the misrepresentation for 4,500 dollars. Held, that the misrepresentation, even if it were innocently made by mistake, as it took the legatee by surprise, and produced on his mind fhlse impressions injurious to his interest, was a good ground of relief for him in a Court of chancery.</p> <p>In the relations of principal and agent, attorney and client, &c., equity implies a confidence, and, in all contracts between them to which the confidence extends, requires of the party in whom the trust is reposed, the highest degree of good faith. It rests on him to prove that the contract is, in every respect, equal, fair, and equitable. If he fail in this, it is a case of constructive fraud, and avoids the contract. And this rule in equity is not confined to the confidence incident to those formal relations, but it is applicable to all cases where confidence on the one hand and influence on the other exist — from whatever cause they may spring.</p> <p>If a legatee, about to sell his legacy, repose.a confidence in the huyeras undoubting, and be liable to an influence as powerful, as if the relation of principal and agent existed between them, the contract must be governed by the rule of equity applicable to the relation of principal and agent.</p> <p>Inadequacy of consideration, in general, is not of itself sufficient to avoid a contract; but when coupled with weakness of mind by whatever cause produced, or with pecuniary distress, or circumstances of 'fraud, it affords a proper subj ect of relief in equity.</p> <p>A treaty respecting an important interest, conducted by two persons of very unequal powers — one with a naturally unsound judgment, rendered still weaker by a long continued habit of intoxication, the. other, enterprising, keen, and sagacious in business — the weaker mind trusting in the stronger —that influence increased by pecuniary embarrassment on one side, and pecuniary power on the other, &e., — and resulting in a contract exhibiting great inadequacy of consideration, — presents a claim to relief which a Court of equity cannot withstand.</p> <p>Although the seller of such interest (a large legacy) under those disadvantages, after he knew that the purchaser had received its amount, and that the same greatly exceeded the price paid for it, may have stated that the purchase was fair, or may have even solemnly confirmed it, — still his right to object to the sale would not be thereby affected, unless, previously to such statement or confirmation, he had been freed from every delusive impression and undue influence under which the sale was made, and had become aware that he could set it aside.</p> <p>The seller of the legacy in such case having received a tract of land in part payment, filed a bill in chancery against the purchaser, complaining of fraud, &e., but did not offer, as he should have done, to reconvey the land and rescind the contract, &c. The bill was answered and the cause submitted on the merits. Held, that the defendant, not having objected to the bill in time, was bound to abide the issue, &c.</p>

<p>If one of two defendants taken on a joint ca. sa. be discharged under the statute from prison, in consequence of the plaintiff’s refusal to pay for his support, that does not operate as a discharge1 of the judgment.</p> <p>An objection to a sci. fa. on a recognizance of bail, because it shows a variance in amount between the judgment and execution, is not tenable.</p>

<p>In assumpsit by JL. against B., one of the questions raised by the pleadings was,' whether a certain note executed by the former to the latter had been satisfied. It appeared that Jl. had transferred- certain property to B.'s ageiit, and that the latter had thereupon delivered the, note to .the -former. Held, that such delivery of the no.te was no.t conclusive evidence of its payment, and that testimony.by the defendant tending to prove its nonpayment was admissible. •</p> <p>Jl. being indebted to B. agreed with him in writing to sell him certain boats and cargoes, and B. in consideration therebf promised that he would forbear to sue,' &c., and, would constitute JL. his agent to sell the property and remit the proceeds, &c.; and, by the agreement, if JL. failed to remit, &c., B. had a right to annul the contract. At the time of making said agreement, Jl. executed to B. a bill of sale of the property, and the latter. , gave the former a power of attorney'to sell the same, See. Held, that the three instruments of writing formed but one'c.ontract, and thiit B.’s right to annul, &c. extended to the whole.</p>

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

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

<p>The amount of damages claimed for land taken' in the constructing of the .Wabash and Eñe canal, under the act to provide for a general "system of internal improvement, is not affected by the benefits resulting to the claimant in consequence of the canal’s enhancing the value of other land of his, which is not connected .with that taken. .</p>

<p>Debt by the assignee of a promissory note against.the maker. Plea, nil debet. Held, that 'the plaintiff was not obliged to prove the assignment, there being no affidavit denying it.'-</p>

<p>The objection that a defendant in a justice’s Court was sued out of the proper township is waived, unless made before the justice.</p>

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

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

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

<p>In debt on a bond conditioned to prosecute an appeal from the judgment of a justice of the peace with effect, &c., the defence was, that the appeal was .not taken within thirty days from the rendition of'the judgment, and was for that cause dismissed. Held, that the defence was insufficient.</p>

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

<p>A person mads a rail-fence by mistake on United States'1 land, which land was afterwards sold by the United States to a third person. Held, that the fence passed with the soil to the purchaser.</p>

<p>A judgment in a suit against two persons on a joint promissory note, rendered against one of them, (the other not having been found,) is a bar to a subsequent suit against both on the same note.</p> <p>To authorize a judgment against JL. in a suit against him and E. on a joint contract (the former only having been found,) the plaintiff must show a good cause of action against both.</p>

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

<p>The keeper of a billiard table, though he do not play on it himself for money nor suffer others to do so, yet if, for a stipulated compensation per game, he allow any persons to use it, he is liable to an indictment.</p>

<p>A set. fa. to have execution in the Circuit Court on a justice’s judgment rendered by default, stated that the summons of the justice had been served on the defendant, but omitted to show the time of its service. Held, that the sd. fa. could not be objected to on account of that omission,-as it must be presumed, the contrary not appearing, that the summons was served in time.</p> <p>If such sd. fa. be against two persons, and be returned executed as to one and not found as to the other, the plaintiff may proceed for an award of execution against the defendant on whom the writ was served.</p> <p>When a constable having in his hands a fi. fa., has made one full examination for goods without effect, he may return the execution nulla bona.</p>

<p>APPEAL from the Union Circuit Court.1</p>

<p>Indebitatus assumpsit does not lie on a collateral undertaking.</p> <p>In assumpsit .on a collateral- undertaking, the -declaration should sh'ow the ■consideration, of'the promise and .the circumstances under ’which it w-as made.</p>

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

<p>A person, in possession of real estate under a contract of sale with Jl. the owner, is not liable to an action of ejectment by the lessee of a subsequent vendee of JL., without a demand of possession.</p> <p>The omission to insert in a declaration in ejectment the name of the defendant who appears to the action instead of the casual ejector, cannot be assigned for error.</p>

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

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

<p>Where a declaration contains several counts, some good and the others bad, the judgment will not be arrested under the statute, after a general verdict for the plaintiff, on account of the bad counts.</p> <p>The publication of a libel is actionable, though the defendant had the libellous statement from another, and gave the name of the author in the publication.</p> <p>In a suit for a libel of a very virulent character, there was a verdict for 1,400 dollars. Held, that the overruling of a motion made for a new trial on the ground that the damages were excessive, was not error.</p>

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

<p>The refusal of the Court to change the venue in a criminal case cannot be assigned for error.</p> <p>If the jury in making up their minds from circumstantial evidence, in a capital case, have a rational doubt as to the existence of any one of the material circumstances attempted to be proved, that circumstance ought not to have any influence with them in forming their opinion respecting the guilt or innocence of the defendant.</p> <p>Although the jury in such case believe from the evidence, that it was possible that some other person than the defendant committed the crime, it does not necessarily follow that there must be a verdict of acquittal.</p> <p>Circumstantial evidence in such case to be sufficient for a conviction, should tend to exclude every supposition inconsistent with the defendant’s guilt.</p> <p>Although the evidence in such case may not be sufficient to produce, on the minds of the jury, an absolute certainty of the defendant’s guilt, nor to prove that he had any motive to commit the crime charged, yet it may be sufficient to satisfy the jury, beyond a reasonable doubt, that he was guilty, and justify a verdict against him.</p> <p>It is a sufficient objection to an instruction to the jury, that it might convey to the mind of any man of ordinary capacity an incorrect view of the law applicable to the cause.</p>

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

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

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

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

<p>A sale of real estate on execution cannot be objected to because it was made after the execution was returnable — the levy having been made before that time. ■ , ,</p> <p>An execution-debtor gave up to the sheriff certain land to be sold. The sheriff, instead of selling that land, levied on other land belonging to the debtor and sold it on tile execution. Held, that the purchaser’s title was not affected by the sheriff’s not having-first sold the land surrendered by the debtor. -. i</p> <p>Irrelevant testimony is inadmissible.,</p>

<p>If in trespass quare clausum fregit commenced in the Circuit Court, the plaintiff do not recover five dollars in damages, and the title to real estate do not, come in question, he recovers no more costs than damages.</p>

<p>In a suit on a promissory note by an assignee against the maker, the declaration alleged that the promise was to pay to the order of certain persons trading under the name of W. and R. P. Resor, (but by mistake written on the face of the note W. R. and P, Resor, meaning, however, the said IV, and R. P. Resor;) that TV. and R. P. Resor indorsed the note, &c. Held, that the note, though it purported to be payable to TV. R. and P. Resor, was not objectionable as evidence on the ground of variance.</p>

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

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

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

<p>Assumpsit by A. against B. and C. on a promissory note, dated the 7th of December, 1839, and payable six months after date to Jl., administrator of the estate of D. Plea, that the note was given in consideration of a certain tract of land sold by A. to B. at the time the note was given; that the sale was made under an order of the Probate Court, the parties to the sale agreeing at the time, that the payment of the purchase-money and the execution of the deed should be concurrent acts; that, in pursuance of the agreement, the Probate Court, at its February term, 1840, appointed one E. a commissioner to execute a deed for the land to B. on payment of the purchase-money; and that the deed had not been made or tendered to B. either absolutely or conditionally. Held, on general demurrer, that the plea was good.</p>

<p>A scire facias to have execution in the Circuit Court on a justice’s transcript, &e. issued in the names of Moore and Whitaker, plaintiffs, — the justice’s judgment being in the same names. Held, that the sdre facias could not be sustained.</p>

<p>Suit, on a sheriff’s bond, for the escape of a debtor alleged to have been arrested on a ca. sa. by a constable, and to have been delivered by him with a copy of the ca. sa. to the sheriff. Held, that evidence of the contents of the ca. sa., the original being lost, was admissible for the plaintiff, without having averred the loss in the declaration, or given notice to the defendant of the plaintiff’s intention to prove the loss and the contents of the ca. sa. Held, also, that the constable was not a competent witness in such case for the plaintiff, to prove the delivery of the copy of the ca. sa. to the sheriff.</p>

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

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