Volume 5 — Indiana Reports

<p>The clerk, auditor and sheriff have no authority, under s. 4, p. 6, R. S. 1852, to appoint a person to preside at a term of the Circuit Court, where the office of circuit judge is vacant.</p> <p>Those officers are only authorized to make the appointment where the circuit judge is temporarily absent.</p> <p>A vacancy in the office of circuit judge can only be supplied by appointment by the governor.</p> <p>During a vacancy in the office of circuit judge, the clerk, auditor and sheriff appointed an attorney to preside at a term of the Circuit Court in their county. The appointment was in legal form and was made a part of the record. A. was then tried upon an indictment for grand larceny and convicted; but during the trial he made no attempt to impeach the airthority of the Court. Held, that a Court defacto, if not de jure, was constituted, and that A., after conviction, could not call in question the authority of the Court.</p> <p>The affidavit of a party convicted of a crime can not be admitted to rebut the statements contained in the record of his conviction.</p> <p>A new trial will not be granted to let in a defence which was known before verdict, and of which the defendant might have availed himself under the general issue.</p> <p>A motion in arrest of judgment can only lie granted for defects apparent in the record.</p>

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

<p>There are two classes of streams within and bordering upon Indiana, which are called navigable streams and public highways: one (which has generally been declared navigable by the legislature, but which the boards of county commissioners, by the B. S. 1852, are empowered to declare so,) is only nayigable for certain kinds of craft, certain distances within the state, and is not visited by vessels coming from and going to navigable waters of other states by continuous voyages; the other consists of those which are navigable in fact for vessels coming out of or returning into the navigable waters of other states by continuous voyages.</p> <p>Over the former class the state has exclusive jurisdiction, and may, for the public good, authorize obstructions at pleasure; and (except so far as private property is taken or injured) no action can be sustained therefor.</p> <p>Over the latter class of streams, so far as they are within her limits, the state, in the absence of legislation by congress, has the same jurisdiction; but congress has the right, under s. 8, art; 1, of the constitution of the United States, to interpose, and divest the state of this jurisdiction.</p> <p>The constitution of the United States superseded the ordinance of 1787, so far, at least, as to abrogate all restraints upon the powers of the states formed out of the Northwestern Territory which did not exist upon the powers of the original states.</p> <p>The provision in the ordinance of 1787, that the navigable waters leading into the Mississippi, &c., shall be free, &c., was superseded by the adoption of the constitution of the United States.</p> <p>But congress has, by subsequent acts, so far recognized and adopted that provision as to give it the force of an existing law.</p> <p>A state has no right, now, seriously to obstruct the navigation of streams which are channels of inter-state trade.</p> <p>Raccoon creek, in Parke county, is not an inter-state navigable stream.</p>

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

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

<p>Where the assignment of a note is not dated, the presumption is that it was made at the date of the note.</p> <p>A presumption, like a fact proved, remains available to the party in whose favor it arises, until overcome by opposing evidence.</p>

<p>Insurers can not take advantage of a stipulation in the policy that an action for a loss shall be barred if not brought within a specified period, where they have been mainly instrumental in producing the delay, by holding out hopes of an amicable adjustment.</p> <p>Policies of insurance are liberally construed in favor of the assured, and an exception is strictly construed against the insurer.</p> <p>A risk was taken by the defendants upon the cargo of one flat-boat, and part of the cargo of another, owned by the plaintiffs, for a voyage from Lawrence-burgh to New-Orleans. The boats were loaded with hay. It was stipulated in the policy that it should be lawful for the boats to touch at intermediate points, with the privilege of coasting and transacting any lawful business connected w'ith the voyage, &c. The boats reached Freeport, three miles above New-Orleans, on the 24th of June, 1846, and three days after landing, according to the usage of the flat-boat trade, all the hands but two were paid off and discharged. Freeport, for convenience, and to save the expense incurred at the New-Orleans wharf, is in practice the New-Orleans hay market. It is a separate municipality, three miles above New-Orleans, another intervening; and is not the place of landing hay, but only a place of exhibiting for the purpose of sale, the flat-boat wharf at New-Orleans being the place of landing and discharging the cargo. On the evening of the third of July, 1846, both boats and their cargoes were destroyed by a storm.</p> <p>Held, that New-Orleans, and not Freeport, was the terminus of the voyage.</p> <p>Held, also, that the stop at Freeport was within the “ coasting and transacting lawful business connected with the voyage,” allowed by the policy.</p> <p>Held, also, that evidence showing the usage as to discharging hands at Free-port was admissible; and that the insurers must be presumed to have known the usage, and to have contemplated it in the policy.</p> <p>A policy of insurance of a flat-boat contained a stipulation on the part of the assured that the boat should be manned with a specified number of hands. Held, that the stipulation was what is termed an executory stipulation or promissory warranty.</p> <p>An executory stipulation or promissory warranty, inserted in a policy of insurance, becomes a binding condition on the assured, and requires a strict performance; and the breach of it, whether the thing warranted is material or not, renders the policy void from its inception.</p> <p>A policy of insurance required that flat-boats of prescribed dimensions should be manned with not less than a specified number of competent hands, &c. Held, that the cook was a competent hand, within the meaning of the policy. A policy of insurance upon the cargo of a flat-boat, contained a stipulation that the insurer should not be liable for any loss or damage during any time in which the flat-boat might be lashed or fastened to any other boat, &c., nor in any case if towed by a steamboat, &c. Held, that the insurers were to be discharged only as to a loss accruing from such towing.</p>

<p>Where one has entered into a special contract to perform work for another, and has done the work, but not in the time or manner stipulated by the contract, if the work done is accepted and used by the other party, the latter is answerable to the amount whereby he is benefited, upon an implied promise to pay for the value he has received. .</p> <p>A., B., and O. were appointed by the board of commissioners a committee to contract for the erection of a county seminary on ground, owned by the county. They accordingly entered into a special agreement in writing with D. to erect the building; and, describing themselves as such committee, stipulated to pay D. a certain amount of money for erecting-it; and after its completion they accepted it on behalf of the commissioners, and reported to them the balance due D. for the work, &c. D. did not finish the work within the time stipulated. D. sued A., B., and C. in indebitatus assumpsit for the value of the work. Sdd, that the suit would not lie.</p>

<p>The R. S. 1843 required that the heirs of an intestate should, if residents of the state, be personally served with notice of a petition filed by the administrator to sell real estate, and of the time and place of hearing the same.</p> <p>The guardian of infant heirs could not waive the personal service of such notice upon them.</p> <p>A sale of the land of infant heirs, upon an administrator’s petition under the E. S. 1843, can be impeached collaterally, if the infants, having been residents of the state, were not personally served with notice of the petition, and of the time and place of hearing the same.</p> <p>It will not be presumed, in a collateral proceeding, that the Court had jurisdiction of the person of resident infant defendants, at the hearing of such a petition, where the adverse party has, in such proceeding, directly admitted the contrary.</p> <p>In a proceeding by an administrator, under the E. S. 1843, to sell land of an intestate, the record showed that the petition was filed in open Court, and that thereupon the guardian of the defendants, who were infants, and residents of the county, appeared and “waived the necessity of notice” to them, &c.; whereupon the Court proceeded to order a sale, &c. Held, that the record disclosed that the Court had no jurisdiction of the defendants.</p>

<p>The powers of a city are limited to those which a strict construction of the grant of powers in its charter will allow it.</p> <p>The charter of the city of Lafayette does not authorize the corporate authorities to issue bonds to aid in the construction of a railroad.</p> <p>The charter of the chy of Lafayette contains a general provision that the city may, upon compliance with certain formalities, create a debt. It, however, restrains the authorities, iu general, to a certain rate of taxation; but, at the same time, authorizes the corporation to construct wharves, docks, piers, water works, works for lighting the city, &c., undertakings the expense of which might far exceed the annual revenues of the city at the general rate of taxation. Held, that the general provision authorizing the city to create a debt, empowers it only to create a debt for these undertakings.</p>

<p>The law does not favor the repeal of statutes by implication, but requires clearly repugnant language to effect the repeal.</p> <p>The act creating the Court of Common Pleas, and defining its jurisdiction, was approved May 14, 1852, and empowered said Court to take cognizance of certain civil causes and misdemeanors, and, also, of felonies in two specified cases: 1. When a person so charged with the commission of a felony, was in custody; and 2. When a person so charged, but not in custody at the time, voluntarily submitted to the jurisdiction of said Court. An act was approved June 1, 1852, (at the same session of the legislature), entitled “an act providing for the organization of Circuit Courts,” &c., “and defining their powers and duties,” which contained a clause enacting that said Circuit Courts, in their respective counties, should have “ original, exclusive jurisdiction in all felonies.” Both acts were incorporated in the same volume of the B. S. 1852. Held, that the latter act divested the Court of Common Pleas of its jurisdiction, in any case, over felonies.</p> <p>The title of the act of June 1, 1852, providing for the organization of Circuit Courts, &c., indicates its entire subject-matter.</p> <p>The parliamentary rule, that an act shall not be repealed at the session at which it is passed, does not apply to a repeal by implication.</p> <p>The constitution of 1851 does not prohibit the repeal of statutes by implication.</p>

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

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

<p>It was sufficient to set aside the service of a summons, under the B- S. 1843, (where there had been no appearance by the defendant waiving any irregularity) that the name of the plaintiff’s attorney was not indorsed on the summons.</p> <p>The provision in the B. S. 1843 authorizing the service of a summons by leaving a copy at the defendant’s usual place of residence, meant, that where there were two or more defendants, though residing at the same place, a copy should be left for each.</p>

<p>Suit by the treasurer of Grant county, upon an instrument signed by one P. and others, addressed to the county commissioners, in which, after reciting that a site had been procured for the erection of a county seminary, hut that the amount of the seminary fund on hand was insufficient for its erection, and that they deemed it important the building should be erected immediately, they agreed to pay the treasurer the sums set opposite to their names, to increase the fund to such sum as might he necessary to build the seminary, &c., to be paid to the treasurer, when called on, as the progress of the building required. Afterwards the commissioners contracted with one S. to build the seminary (for the payment of which the subscription was intended to be used) and he finished it pursuant to the contract. During the progress of the work, a proper demand was made upon P. for the sum set opposite to his name, but he refused payment.</p> <p>Held^th&t the promise of P. was founded upon a sufficient consideration.</p> <p>Held, also, that a want of consideration could not, at any rate, be set up after the purpose in aid of which the subscription was made had been accomplished.</p> <p>Held, also, that the suit should have been in the name of the county commissioners, and not of the treasurer.</p>

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

<p>A section in the B. S. 1852 was as follows: “If any person shall sell or give away intoxicating- liquor to any minor, without the consent of his parent or guardian, or shall sell or give away intoxicating liquor to any person at the time in a state of intoxication, he shall be fined,” &c. An act approved March 4, 1853, entitled “an act to regulate the retailing of spirituous liquors and for the suppression of the evils therefrom,” contained the following section: “All laws on the subject of retailing intoxicating or spirituous liquor heretofore enacted, are hereby repealed.” Held, that the latter section repealed the section in the B. S. 1852 quoted.</p>

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

<p>ON PETITION for a Rehearing.</p>

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

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

<p>lot No. 41 in Walker’s second addition to the town of Aurora, was in the town of Aurora, and situate in section 29, township 5, rango 1; but the first section of the act incorporating the city of Aurora, enacted as follows: “that tho boundaries of tho city of Aurora shall be the same as the boundaries of the present town of Aurora, that is to say, the boundaries of said city shall include all the territory embraced within tho recorded plat of said town as the same is recorded,” &c., “and all the territory within the several enlargements of or additions to said town; being all the in-lots and out-lots laid off in section 4, in township 4, of range 1, and sections 32 and 33 of the same township and range.” Held, that said lot No. 41 was not in the city of Aurora.</p> <p>Statutes should be so construed as to render every part of them operative, if possible.</p> <p>Courts may give a sensible and reasonable interpretation to legislative expressions which arc obscure; but where the language of an act is explicit, leading to no absurd results, they must be governed by the obvious meaning and import of the terms used.</p>

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

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

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

<p>A. and B., by an agreement in writing, sold to C. five hundred hogs, to be well fatted and to average two hundred pounds net, to be delivered at, &c., whenever C. might want them after the 25th of November, 1850; but A. and B. were to have the privilege, if they desired it, to feed two hundred of them until the 1st of December, 1850, but were to deliver them on that day or as soon after as G. might require. C. was to give timely notice, so that A. and B. could deliver the hogs and have them slaughtered in time for delivery, and he was to pay the price agreed upon for the hogs when they were weighed and delivered. C. gave notice to A. and B., on the 11th of December, 1850, that he was ready to receive and pay for the hogs, but A. and B. failed to deliver them, &e.</p> <p>Held, that C. did not agree to take the hogs whenever, after December 1, 1850, A. and B. thought proper to tender them, but only after he had given notice of his readiness to receive them.</p> <p>Held, also, that on the 1st of December, 1850, G.’s right to demand all the hogs not then delivered, was complete; but'that at any reasonable time thereafter during the proper hog-killing season, he might give notice of his readiness to receive and pay for the hogs; and that it was incumbent upon A. and B. to be ready to respond to the notice.</p> <p>Held, also, that a notice given on the 11th of December, 1850, was reasonable and timely.</p>

<p>A. and B., on the 5th of October, 1847, agreed in writing to receive from C. between fifty-five and seventy pork hogs, to be delivered to them at their pork-house in G. not, for which they agreed to pay O. 3 dollars per hundred pounds net, &c. The hogs were to average two hundred pounds net, and to be delivered in December thereafter, and the money was to be paid on the delivery of the hogs.</p> <p>Held, that O. was to deliver to A. and B. slaughtered hogs.</p> <p>Held, also, that the hogs purchased by A. and B. were the hogs owned by G. when the contract was made, and that if G. did not then own a sufficient number which could at the time for delivery be made to meet the average weight required, A. and B. were released.</p> <p>Assumpsit by G. against A. and B. The declaration contained three counts. The first and second were upon the foregoing agreement, one averring a delivery agreeably to contract and a refusal to pay, &e.; the other averring- a tender and refusal to receive. The third was a common count for goods sold. On the trial, A. admitted that, at the date of the contract, he had not hogs enough of his own which could be made to fill the contract within the time specified. He also admitted that of the fifty-nine hogs delivered, fifteen, averaging two hundred and eighty pounds, were purchased by him a day or two before the delivery, as he was driving his own hogs to G. to be slaughtered, without which hogs it was admitted that he could not have filled his contract. It was also in evidence that in November, C. told A. that his (G.’s) hogs would not fill the contract, and applied to A. to let him buy other hogs to make out the number and weight required, but that A. objected, saying that he had contracted for the lot of hogs owned by G. at the date of the contract. At the time of this conversation pork had fallen to 2 dollars per hundred. — It was also in evidence that on the morning of the day the hogs were slaughtered, A. told O. that said fifteen hogs would not be received under the contract, but he would allow him 2 dollars a hundred for them, but that if G.’s own hogs filled the contract, he would take them accordingly; if not, they would have to take their chance with the other pork. O. replied that he would bring the hogs to the porlt-house in the morning. — It was also in evidence that A., on that very day, instructed his agent to receive the hogs when G. should come to the pork-house, and that the agent received them without objection except as to one tainted. Upon these facts, the Court instructed the jury, that it was a contract by G. to deliver specific hogs which, at the time of the contract, belonged to G.; that, therefore, A. and B. were not bound to receive any hogs which G. might afterwards buy; but that if G. tendered to A. and B. as well a number of hogs thus afterwards purchased by him, as some of his own belonging to him at the date of the contract, so as to make the number, weight and quantity of pork hogs according to said contract, and A. and B. received them under that contract, the jury ought to consider them as waiving all right to object on the ground that they were not the same hogs contracted for; and they would, in that case, be liable to pay according to the written contract. Held, that these instructions fairly presented the issue to the jury.</p> <p>After the retirement of the jury in a civil case, one of the jurors left the room unaccompanied by the bailiff, and was absent fifteen minutes. Held, that this was not sufficient of itself to set aside the verdict.</p> <p>Motion for a new trial on the ground that a prejudiced juror was called to fill up the panel after the defendants had exhausted their right of challenge.</p> <p>Held, that the right of challenge for cause could not be exhausted.</p> <p>Held, also, that if the juror was permitted to be sworn, without being interrogated as to his competency, the objection was waived.</p> <p>Held, also,'that if the juror was thus examined, it must be presumed, the contrary not appearing, that he was impartial.</p> <p>The jury in a cause in which a calculation of various items was involved, were permitted by the Court to take -with them, in their retirement, a paper con-tabling an estimate of counsel as to what was due to the plaintiff, the Court informing them that the paper was not evidence. Held, (the Supreme Court disapproving the practice) that this was not error.</p>

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

<p>Where a bailment is for the sole benefit of the bailor, the law requires only slight diligence on the part of the bailee, and makes him answerable only for gross negligence.</p> <p>Where a person has acted as a bailee in a. matter not within the scope of his ordinary occupation, it is incumbent upon the bailor who seeks to render him liable for negligence as a bailee for reward, to prove that he was to receive a compensation.</p> <p>Where the record simply states that issues were joined, but does not set out any plea to the declaration, the presumption is that none was filed.</p> <p>A trial without an issue is erroneous.</p>

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

<p>Where a trial was in progress in the Circuit Court at the expiration of a regular term, the Court was empowered, by the R. S. 1843, to hold over to complete the trial.</p> <p>A person competent to make a will may disinherit his children, and his motives can not be called in question.</p> <p>Where children are disinherited by a will, the hardship of the case is of no weight further than as a circumstance tending, in connection with other evidence, to show the insanity or other mental defect of the testator.</p> <p>A belief in witchcraft is not, of itself, sufficient evidence of the insanity of a testator, to set aside his will.</p>

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

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

<p>A party assented to the submission of issues to the jury which were properly triable by the Court. The evidence given on the trial of the issues was brought to the attention of the Court, on a motion by said party for a new trial. Held, that there «was no error.</p> <p>Objections to evidence must be made specifically at the time-it is offered, and not generally, at the close, to all the evidence.</p> <p>The grounds of objection to evidence must be stated, if demanded by the Court.</p>

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

<p>A decree of foreclosure was invalid, under the B. S. 1843, which did not allege whether any proceedings had been had at law to recover the mortgage debt.</p> <p>A hill of foreclosure contained no allegation whether any proceedings had been had at law to recover the mortgage debt. On a demurrer being sustained to the hill, the complainant amended by inserting the allegation. Held, that, under the B. S. 1843, the adverse party was entitled to a continuance.</p>

<p>Personal property incumbered by liens to an amount exceeding its value, was sold under a representation of the seller that it was clear of incumbrances, and a judgment was obtained for the purchase-money. Held, that the collection of the judgment could be enjoined till the incumbrances were removed.</p>

<p>The amendment of a bill of foreclosure, by inserting the averment required by the K. S. 1843 as to whether any and what proceedings had been had at law, entitled the defendant to a continuance.</p> <p>A bill to foreclose a mortgage given by way of indemnity, did not allege that the mortgagee had been compelled to pay any money, or had been otherwise damnified. Held, that the bill exhibited no ground for relief.</p>

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

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

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

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

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

<p>Debt by A. against B. and O. on a note. Plea, that the note was made by B., as principal, and O. as surety; that prior to and at the time of mailing the note, A. and B. were partners in the drag business in the town of V., and in consideration that B. would pay A. a certain sum, and the defendants would execute said note and another for a like sum, A. agreed to transfer to B. his interest in the business and to retire from and not engage in the business in V. for one year; that accordingly B. paid the sum agreed upon, and executed the notes, with O. as surety; that A. did not comply with bis agreement, but for a long period withheld and concealed from B. a part of the drugs, during which time he was prevented from selling and mailing profits out of them; nor did A. retire from business, but, in fraud of the agreement, resumed said business in V., &c., to the great damage, &c. Special demurrer to the plea. Held, that the plea was objectionable for not alleging any specific amount of damage sustained by B.</p> <p>Whore the general issue and a special plea have been filed, and the matter specially pleaded was admissible under the general issue, the judgment will not be reversed though a demurrer to the spocial plea has been erroneously sustained.</p>

<p>The act of 1852 creating the Court of Common Pleas, did not divest the Circuit Court of jurisdiction of cases for retailing spirituous liquors without license.</p> <p>The criminal act of 1843 (which gave to the Circuit Court jurisdiction of misdemeanors) continued in force until May 6, 1853.</p> <p>There can be no repeal of statutes by implication in doubtful cases.</p>

<p>Bill to subject the equitable estate of one of two debtors to sale upon a justice’s judgment. The bill alleged that an execution had been issued on the judgment, and returned nulla bona, but contained no averment that the defendant, or his co-defendant-in the judgment, had no' real estate subject to execution. Held, that the bill showed no ground for relief.</p> <p>The provisions on p. 456, B. S. 1843, authorizing the sale, upon a decree in chancery, of an equitable interest in real estate, after an execution at law has proved unavailing, relate to executions from the Circuit Courts.</p>

<p>The plaintiffs, who were employed to construct a section of tlie Wabash and Erie Canal, agreed with the trustees that the certificate of the inspector should he conclusive as to the amount of work done. Held, that the certificate was to be conclusive unless founded upon fraud or mistake.</p>

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

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

<p>Suit by the Indiana Mutual Fire Insurance Company against C., upon his premium note. C., on the 29 th of March, 1843, effected an insurance with the plaintiffs on certain property in Indianapolis, receiving a policy and giving the note sued on — the policy and the note being the consideration for each other. The declaration, after setting out the substance of the note and policy, averred that certain assessments had been regularly made against the defendant, according to the terms of the contract, which he had failed and refused to pay, &c. Hea, that on the 10th of July, 1843, C. sold and conveyed the property insured to W.; that on the 12th of July, 1843, he paid all insurance and assessments which had accrued up to the latter date, of which the plaintiff had notice, &c., and that thereby and thereafter the consideration of the note had failed. The charter of the company provides that when a house or other building shaE be alienated by sale, &c., the policy shall be void, and be surrendered to the directors of the company to he cancelled; and upon such surrender the assured shall' be entitled to his deposit (premium) note, upon the payment of his proportion of all losses and expenses that have occurred prior to such surrender. Held, notwithstanding- this provision, that the plea was a sufficient answer to the action.</p> <p>Courts will look at the substance of contracts of insurance, just as at contracts between individuals, and will not permit corporations, under the pretext of cunningly devised stipulations, which tend to render nugatory the ostensible object of the contract, to evade any just responsibility incurred, or assert any right not fairly coming within the purview and clear intent of the contracting parties.</p>

<p>Where the declaration contains several counts, the Court can not compel the . defendant to elect to which count he will apply the evidence.</p> <p>Trespass for an assault and battery. On the trial the Court allowed the defendant to prove that, understanding that the plaintiff had threatened him with personal violence, he wrote a letter to the plaintiff, telling Mm he intended to cany arms in self-defence. The defendant had before proved that the letter itself had been destroyed. The Court instructed the jury that the contents of the letter had been admitted solely to show that the defendant had forewarned the plaintiff that he should arm himself, &c. Held, that, thus qualified, the evidence was not improper.</p>

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

<p>An agreement of tlio holder of a promissory note not to sue on the note for a limited time, is no bar to a suit brought before such time has. elapsed.</p> <p>Where the general issue and a special plea have been filed, and the defence set up in the special plea is admissible in evidence under the general issue, the judgment will not he reversed because a demurrer to the special plea was erroneously sustained.</p> <p>The statute of 1843 requiring non-resident plaintiffs to give security for costs, was not intended to apply when either of the plaintiffs was a resident of the state.</p>

<p>Where a sheriff's sale of a tract of land is fairly made in gross, it can not be disturbed by a judgment-creditor of the defendant because the tract contained a greater number of acres than it was supposed to contain when it was levied upon, appraised and sold.</p> <p>A judgment is not a lien upon the equitable estate of the debtor.</p> <p>Before a bill filed to enforce the collection of a judgment out of the equitable estate of the debtor, he may, if guilty of no fraud, convey such estate to a third person.</p> <p>A purchaser of land under a junior judgment, may enjoin the sale of the land on an execution issued on a prior judgment, until the other property of the debtor which has been levied upon has first been exhausted.</p>

<p>The statute of 1832, prohibiting the sale of spirituous liquor to a minor, without the consent of his parent or guardian, was repealed by the liquor act of 1853.</p> <p>The repeal of a statute creating an offence, is a bar to any subsequent prosecution under such statute for an offence committed before its repeal.</p>

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

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

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

<p>The fact that witnesses were allowed to testify who were disqualified by interest is not sufficient to reverse the judgment, if, under the present practice, they would he competent witnesses at another trial.</p> <p>The fact that irrelevant instructions not tending to mislead the jury nor prejudice the rights of the objecting party, were given at a trial, is not. sufficient to reverse the judgment.</p> <p>If the verdict is fully sustained by the evidence, the Supreme Court will not set it aside on account of an erroneous instruction given to the jury.</p>

<p>An appeal to the Circuit Court would not lie, under the B. S. 1843, on behalf of one of several defendants, from the judgment of a justice of the peace.</p>

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

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

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

<p>Trespass quare clausum fregit. The declaration was filed in the name of the state for the use of the inhabitants of congressional township No. 21, &c., and contained two counts, in which the defendants wore charged with having broken and entered into a school-house belonging to district No. 7 in said township, &c. After a demurrer had been sustained to one count, and issues of fact had been formed upon the other, the plaintiff moved for leave to amend the declaration by striking out the words “for the use of the inhabitants,” and inserting in their stead the words “for the use of school district number seven.” The Court having allowed the amendment, the plaintiif afterwards asked leave to amend the writ so as to make it conform to the declaration, but the Court overruled the motion, and the suit was dismissed, on the motion of the adverse party, for the variance.</p> <p>Held, that the amendment of the declaration was properly allowed.</p> <p>Held, also, that leave to amend the writ ought to have been granted.</p>

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

<p>An information for retailing spirituous liquor which does not allege a price for which the liquor was sold, is had on motion to quash.</p> <p>To convict a defendant of a misdemeanor, it must he proved in what county the oifence was committed.</p>

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

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

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

<p>An amendment, changing tlie nature of an action from one ex contractu to one ex delicto, was not allowed by the R. S. 1843.</p> <p>Justices of the peace, by the R. S. 1843, had no jurisdiction of an action of tort, where the damages claimed were 100 dollars.</p>

<p>An administrator, in 1847, made a final settlement of an intestate’s estate, in the Probate Court. In 1850, the Court, on a bill filed by certain creditors of the intestate to open up the settlement on the ground of waste, &c., found that there was then in the hands of the administrator, not paid, nor in anyway accounted for, 1,732 dollars; and made a decree that the settlement should be opened up, and that the complainants should recover of the administrator, as such, said sum and costs, &c. On this decree an execution was duly issued and returned nulla bona. In a suit by said creditors upon the bond of the administrator,</p> <p>Hdd, that the surety was estopped from controverting the validity of -the decree which ascertained the amount to be paid to the plaintiffs.</p> <p>Held, also, that the decree was a sufficient conviction of waste.</p> <p>The bond given by an administrator, under the E. S. 1831, on receiving his letters, rendered the obligors responsible for the proper application by the administrator of the assets derived from the sale of real estate.</p> <p>On an application by an administrator to sell real estate, it was in the discretion of the Court, under the E. S. 1831, to require from the administrator an additional bond or not.</p> <p>A suit could not be maintained upon the additional bond given by an administrator under the E. S. 1831, on an application to sell real estate, until the penalty of his original bond had been exhausted.</p> <p>Where the record does not profess to sot out all the evidence given at the trial, the Supremo Court will presume that there was sufficient to sustain the judgment.</p>

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

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

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

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

<p>Motion by A. to set aside a sheriff's sale of a lot in Greensburg sold as the property of one F. The facts wore these. B. and C. on the 9th of November, 1840, recovered a judgment in the Decatur Circuit Court against D. and E., and on the 16th of December, 1840, F. became replevin bail. On the 20 th of November, 1843, the auditor of Decatur county recovered a judgment against F. On the 16th of November, 1843, G. and E. recovered a judgment against F., which was assigned to A., and on the 23d of the same month, a mortgage on said lot was foreclosed, given by F. and wife to G. and E., dated June 22, 1842. Executions on the several judgments were in the sheriff's hands at the time of the sale sought to be set aside, and the sale was made on all the executions at once, though the sheriff's deed recited only the judgment, execution, &c., of B. and O. The judgment of B. and G. was not affected by any appraisement law, but the other claims were affected by the appraisement laws in force in 1842-3. The lot was worth 800 or 900 dollars, but was struck off at the sheriff's sale at 80 dollars. It appeared that the price was the only fund accessible to discharge said liens.</p> <p>Held, that the judgment of B. and G. was the first lien on the lot, and the other judgments and the mortgage were a lien according to their respective dates.</p> <p>Edd, also, that the sale was void for inadequacy of price.</p> <p>A sheriff, in selling land upon execution, can receive only an unconditional cash bid.</p> <p>A trial without an issue is erroneous.</p>

<p>Ah information for retailing spirituous liquor without license, which does not allege a price for which the liquor was sold, is had on motion to quash.</p> <p>An information for retailing spirituous liquor omitted to state a price for which the liquor was sold. The Supreme Court directed the Court of Common Pleas to permit the district attorney to amend hy inserting a price.</p>

<p>Trespass before a justice of the peace for killing a dog. Plea, in substance, that the dog was trespassing upon and injuring the wheat field of the defendant's father; and that, as the servant, &c., and because he could not otherwise prevent the dog from doing further injury, he killed him. Held, that the plea was bad.</p> <p>The plaintiff, in a cause appealed from a justice of the peace, by withdrawing a demurrer sustained to a plea filed with the justice, did not, under the B. S. 1843, become liable for the costs of the cause from the time the demurrer was sustained.</p>

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

<p>After the money secured by a mortgage, which had been assigned, became due, the mortgagor delivered certain live stock to the assignee in payment, and the assignee delivered up the mortgage. The assignee, who resided in Michigan, started to drive the stock there, but before he had reached the border of this state, in which the mortgagor resided, the stock was levied and seized upon executions against the mortgagor, which were liens on the stock when it was delivered to the assignee. Upon a trial of the right of property, the property was held liable to the execution. Afterwards, the mortgagor paid off the executions, but never re-delivered or offered to redeliver the stock to the assignee. Held, that these facts did not show a payment of the mortgage.</p>

<p>Where the record, in a cause commenced before a justice of the peace, does not disclose a cause of action, it will be presumed on error that none was filed.</p> <p>A trial without an issue is erroneous.</p>

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

<p>A demurrer was sustained to certain special pleas, but the facts alleged in the pleas were admissible, and were received, in evidence under the general issue. Held, that it was not necessary, therefore, to pass on the merits of those pleas.</p> <p>The Supreme Court will not set aside the verdict of a jury merely because the jury assessed higher damages than the Supreme Court would have done on the same evidence.</p> <p>Trespass for diverting a spring branch from the defendant’s slaughter-house. Held, that under the former system of practice, the fact that the slaughterhouse was a nuisance, and had depreciated the value of the defendant’s land, &c., was not admissible in defence.</p>

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

<p>The petition of a guardian to sell real estate of his ward, was filed, the appraisers appointed and sworn, the appraisement made and returned, and the order of sale made, on the same day. Held, that this was not sufficient, under the R. S. 1843, to set aside the order of sale.</p> <p>It was not necessary, under the R. S. 1843, that the record, in the case of a guardian’s application to sell real estate, should show that any evidence was offered to sustain the matters set out in the petition.</p> <p>Such evidence does not seem to have been necessary to authorize an order of sale.</p>

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

<p>Appeal from an order temporarily enjoining a suit in ejectment commenced by A. against B., to recover land which had been sold on an execution against, and as the property of B., to one C. It appeared that the property, when sold, was worth 1,000 dollars, and was purchased by O. for 200 dollars; that it was suffered to remain in B.’s possession for five years, as if no change of title had taken place, and was then sold, while still worth 1,000 dollars, by O. to A., for 500 dollars, &c. It also appeared that bidding was prevented at the sheriff's sale by C.’s promises to B. and his creditors that the latter should be paid and B. allowed to redeem, &c. Held, that a case entitling B. to relief was shown, and that the order of injunction should be affirmed.</p>

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

<p>A cause haying been twice continued upon the plaintiff’s affidavit, on account of the absence of a witness residing in another county, at the third term the plaintiff again applied for a continuance, on account of the absence of the same witness. In support of his motion he offered his former affidavit, to which he had been re-sworn, alleging that the witness had been subpeenaed and was not present, and that he could not so fully prove by other witnesses certain specified facts. The plaintiff, notwithstanding the failure of the witness to appear at three successive terms, always refused to take an attachment for him. The Court overruled the last application, and the plaintiff having refused, when the cause was called for trial, to adduce any evidence, the Court dismissed the suit. Held, that the Court did right.</p>

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

<p>Ejectment by A. against B. for a tract of land. A. introduced patents from tbe U. S. for the tract, and also a lease under seal made by one O. and B. for the same land. In the introductory part of the lease, O. described himself as the agent of A., but it was signed and sealed by G. The lease contained a stipulation that B. would leave the premises, if requested, on the first of March, 1850, &c.</p> <p>Held, that A., by allowing B. to enter and occupy under the lease, and by offering the lease in evidence, adopted and confirmed the act of G.</p> <p>Held, also, that B., in the present case, was estopped by the recitals in the lease from denying that G. was A.’s agent.</p> <p>Held, also, that A., in order to terminate the lease, was not required to give B. written notice to quit three months before the first of March, 1850.</p>

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

<p>A scire facias to revive a judgment is not objectionable for leaving blanks for the costs which had accrued on the judgment.</p>

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

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

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

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

<p>An answer without oath contained a material admission against the defendant. After depositions had been taken, the defendant, who seemed not before to have known the extent of his admission, filed his affidavit and the affidavits of his solicitors, to the effect that as the answer was not under oath, it had been loosely prepared, and signed by the defendant without reading, and that the admission was a mistake of his solicitors and contrary to the fact; whereupon he asked leave of the Court to amend his answer so as to deny the thing so admitted, which the Court granted. Held, that the leave to amend was correctly given.</p>

<p>By an instrument in writing the subscribers agreed to take the number of shares, of 50 dollars each, annexed to their names, in the capital stock of the New-Albany and Salem Railroad Company, to extend the road from Bloomington to Gospoi-t, and pay the same in fifteen instalments of, &e., per share, the first instalment to be paid on, &c., and one instalment every two months thereafter till the whole was paid. The defendant subscribed his name, and put opposite thereto “4 shares, 200 dollars.” There was a provision in the charter of the' company that the company should have power “ to demand at such time and in such proportion as they shall see fit, the sums of money due by stockholders on their respective money subscriptions of stock, under pain of forfeiture of the shares of their stock, and all previous payments,” &c., “ or sue therefor, and recover the amount due in an action of assumpsit, at their option.” In a suit by the company for instalments due,</p> <p>Held, that the time for the payment of the instalments having been fixed by the contract, no demand of payment was necessary before suit.</p> <p>Held, also, that it was not incumbent upon the company, before suit, to elect either to exact a forfeiture or sue for the money, and notify the defendant thereof.</p> <p>Held, also, that a readiness to extend the road from Bloomington to Oosport was not a condition to the payment of the instalments.</p>

<p>A new trial will not be granted on account of newly discovered evidence which is merely cumulative.</p> <p>The omission to assess nominal damages, where there is a mere naked technical right to recover, is not a ground for a new trial.</p>

<p>Trespass will lie against a corporation.</p> <p>Trespass against a railroad company, for entering upon the plaintiff's close with men, &c., and digging up and carrying away earth, &c. The record of the cause did not show that the injuries were committed by the company when acting under their charter, or in the construction of their road.</p> <p>Held, that it could not be presumed that they were so committed.</p> <p>Held, also, that the company, if they desired to avail themselves of such defence, should have set it up by plea.</p>

<p>The mode of presenting for review tho admissibility of oral proof of an exhibit, in chancery, is by bill of exceptions.</p> <p>In a suit in chancery by an assignee for the foreclosure of a mortgage, the defendant, by his answer under oath, denied having any knowledge of the assignment of tho mortgage further than what he had learned from the bill. Held, that the denial was not such as, under the B. S. 1843, put the plaintiff to the proof of the assignment.</p> <p>The oath or affirmation in denial of an assignment, should be, that the party has reason to believe, and does verily believe, that such assignment was not made.</p> <p>The proof of facts pleaded in avoidance lies upon the party alleging them.</p>

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

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

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

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

<p>In slander, the plaintiff can not prove the speaking of words not laid in the declaration, to aggravate the damages.</p>

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

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

<p>To authorize the proceeding, under the R. S. 1843, before two justices of the peace, to obtain possession of real estate, it was not necessary to show that the relation of landlord and tenant existed between the parties.</p>

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

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

<p>E It NOE. to the Laporte Circuit Court.</p>

<p>The act approved January 15, 1849, (L. 1849, p. 64) to amend the 13th article of the 40th chapter of the K. S. 1843, repealed section 462 of that chapter, without any saving provision as to pending suits.</p> <p>The amount recoverable against a sheriff under section 462 of chapter 40 of the It. S. 1843, was in the nature of a penalty.</p> <p>There can be no vested right in a penalty until it is reduced to a judgment.</p> <p>If a penalty does not become executed before a repeal of tho statute giving the right of action, it falls with the statute, and can not afterwards be enforced.</p>

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

<p>Suit by B. against the Wayne County Turnpike Company, for damages for an injury sustained by bim by a fall through the sidewalk of a bridge within the corporation of Cambridge City, alleged to belong to said company, and which was out of repair. The Court allowed the plaintiff' to amend his complaint on the trial, by inserting the averment that he was ignorant that the bridge was out of repair. The record showed no abuse of discretion by the Court; and no motion for a continuance or for the taxation of costs was made. Held, that there was no error.</p> <p>The bridge in question was constructed by the White Water Valley Canal Company, across an existing highway which the canal had rendered impassable, and was erected for the restoration of the highway, and became a part thereof. Three or four years after its erection, and while it was yet used as a public highway, said turnpike company was incorporated, with the right of converting said highway into a turnpike, and charging tolls thereon, and burdened with the duty of keeping it in repair. The company received the highway as it was, with its bridges, culverts, &c., subject to existing easements. Held, that, as to the public, the turnpike company was bound to keep the bridge in repair.</p> <p>Semble, also, that the canal company, and, if the highway was along a street of Cambridge City, the city, might likewise be bound to keep the bridge in repair, and the injured party might elect which of the three parties to sue.</p> <p>Held, also, that though the turnpike company might not have been bound to keep the sidewalks of the bridge in repair, because originally attached to it, yet the evidence being that the company had on one or two occasions made some repairs on it, the company was bound to keep the sidewalks in repair so long as they continued and recognized them as part of the bridge.</p> <p>A judgment will not be reversed on account of the improper admission of evidence, where the evidence itself is entirely unimportant.</p> <p>There is no error in refusing to give an irrelevant instruction to the jury.</p>

<p>Where a prisoner has been given in charge, on a legal indictment, to a regular</p> <p>¡ jury, and the jury has been unnecessarily discharged, he has been once put in jeojbardy, and the discharge of the jury is equivalent to a verdict of acquittal.</p> <p>The failure to embody in the R. S. 1852 a provision in relation to Circuit Courts similar to section 325, p. 733, R. S. 1843, (which is substantially •enacted in relation to Courts of Common Pleas by the act organizing them), is a casus omissus within the meaning of section 172, 2 vol. R. S. 1852, p. 383, and said section 325, p. 733, R. S. 1843, is therefore continued in force.</p> <p>The discharging of a jury before verdict, by the Circuit Court, in a criminal case, against the will of the prisoner, on account of the expiration of the time fixed by law for the continuance of the term, is, under said section 325, unnecessary, and equivalent to a verdict of acquittal.</p> <p>A jury, while engaged in the trial of a prisoner for murder, was discharged against the will of the prisoner, by the Circuit Court, by reason of the expiration of the time fixed by law for the continuance of the term, and the prisoner was remanded to jail to await another trial. The prisoner soon afterwards applied to the judge of the Court of Common Pleas of the county, for a writ of habeas corpus. The writ was granted, and, on the hearing, the foregoing facts having been made to appear, the judge remanded the prisoner to jail to await his trial in the Circuit Court.</p> <p>Held, that by the E. S. 1852 (yol. 2, pp. 195-6, s. 725) the judge was compelled, upon the prisoner’s petition, to award the writ, but, held, that upon the return of said facts, it was his duty to remand the prisoner to the Circuit Court, and that the latter Court might discharge the prisoner on motion, or he might plead the discharge of the jury in bar of a second trial.</p>

<p>A person admitted to defend an action as a poor person, under sec. 15, p. 30, vol. 2, R. S. 1852, is entitled, upon judgment being rendered against Mm, to a transcript of the record, for the purpose of an appeal to the Supreme Court, before payment to the clerk of any fees therefor.</p> <p>Section 25, p. 229, vol. 1, E. S. 1852, provides a compensation for clerks, under the name of extra services, for making out transcripts in such cases.</p> <p>But the clerk is not entitled to compensation from the county until he has delivered the transcript to the poor person.</p> <p>The services of officers entitled to fees or salaries fixed by laiv, are not “ particular services” within the meaning of see. 21, art. 1, of the constitution of 1851.</p>

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

<p>A. convoyed a lot to B., bounded on one side by “an alley.” The alley referred to, as opened and used for several years, was sixteen feet in width; as recorded, twelve, feet; leaving a strip, four by forty-seven feet, between A.’s lino and the recorded alley, to which he had no title.</p> <p>Held, that either alley, the recorded alley, or the alley de facto, would answer the description in the deed.</p> <p>Held, also, that a grant is to be taken most strongly against the grantor.</p> <p>Held, also, that to identify the lot conveyed by A. to B., it was proper, in case of doubt as to which alley was meant, to look to the intention of the parties as deduced from the circumstances surrounding them: as that the land in dispute had before been conveyed by A. to C.; that the alley de facto was of the same width as that of which it was a continuation; that there was, at the time of sale, a fence on the line of the alley de facto, &e.</p> <p>Where two objects or lines answer the calls of a deed, and it appears that the grantor owned up to one, but not the space between, that which the call first meets is the boundary.</p>

<p>By the common law illegal interest paid might be recovered back.</p> <p>Suit upon a note executed in Ohio in 1846, payable in tlm’ty days. The legislature of Ohio passed an act which took effect March 1, 1848, authorizing usurious interest paid to be recovered ¡back or set off. It appearing by the evidence that usurious interest had been paid on the note, and it seeming that it was paid in September, 1850, it was allowed to be set off against the note.</p>

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

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

<p>Ia trespass, the introduction of evidence by way of defence, no matter for what purpose it is offered, can not he considered in aggravation of the damages.</p> <p>The refusal of the Court to give a pertinent and proper instruction to the jury, will not authorize the reversal of the judgment, where the Court has virtually given it in other instructions.</p> <p>Where a defendant is sued for a tort, which is also a subject of criminal jurisdiction, the rule that gives damages not only to recompense the sufferer, but to punish the offender, is not applicable.</p> <p>The damages for such a tort are limited to those which are merely compensatory.</p> <p>In trespass for an assault and battery, the jury are not restricted to a consideration of the plaintiff’s mere pecuniary loss, but they may consider every circumstance of the act which injuriously affected the plaintiff, not only in his property, but in his person, peace of mind and individual happiness.</p> <p>The jury can not, however, in estimating such damages, take into consideration the wealth of the defendant.</p> <p>The objection that an instruction given to the jury was not reduced to writing, if not made in the Court below, can not be made in the Supreme Court.</p>

<p>By the 21st section of article 4 of the constitution of 1851 it is ordained, that “No act shall ever be revised or amended by mere reference to its title; but the act revised, or section amended, shall be set forth and published at full length.” Held, that the meaning of this section is, that the act revised, or section amended, shall be inserted at full length in the act amending or revising it.</p> <p>Section 2 of the act of 1853, entitled “An act to regulate the taking of appeals from the Court of Common Pleas,” which professes to amend section 22 of tlie act to establish Courts of Common Pleas, &c., approved May 14, 1852, by reference merely to its title, is unconstitutional and void.</p> <p>Section 21 of article 4 of the constitution of 1851 was borrowed from article 119 of the constitution of Louisiana of 1846 — the words “sot forth” being substituted for the word “re-enacted” in the latter constitution.</p> <p>The section was reported to the convention and passed in the language of said article 119 of the constitution of Louisiana, and the words “set forth” were substituted for the word “re-enacted” by the committee on revision, &c., as a mere verbal alteration, and the change was afterwards sanctioned by the convention.</p> <p>Where a constitutional provision is borrowed from the constitution of a sister state, the previous construction given to the provision by the legislature and judiciary of such state, is regarded as high authority as to its meaning.</p> <p>The construction given to article 119 of the constitution of Louisiana by the legislature (with few exceptions) and by the judiciary of that state, has been, that the act revised, or section amended, should bo set forth and published at full length in the act amending or revising it.</p> <p>The acts of 1853 were published and circulated in the several counties, in conformity with the constitution, and took effect on the 24th of July, 1853. Section 1 of the act of 1853 entitled “An act to regulate the taking of appeals from the Court of Common Pleas,” repealed sections 13 and 20 of the act establishing Courts of Common Pleas.</p> <p>The act of 1853 having contained no saving clause as to appeals pending in the Circuit Court, the Circuit Court was divested by said act of any jurisdiction to try the same.</p>

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

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

<p>A railroad company will not be exempted from liability for injuries incurred by a passenger while on their cars, produced by the carelessness of the servants, upon proof that the servants were carefully selected, by the company with reference to their competence, and that the negligent act was done without the sanction of the company.</p> <p>Public earners of passengers not only engage for the competent skill of their employees, but for its faithful and continued application.</p> <p>The servants of a corporation are no more and no less than the servants of natural persons, and whatsoever is negligently done or omitted by them, is, as to the public, the employer’s act.</p> <p>Railroad companies are not to be distinguished from stage-coach proprietors in the degree of diligence required, and the extent of liability incurred, in the carrying of passengers.</p> <p>Public policy demands that the law should be applied as rigidly to railroad companies as to any other species of passenger carriers.</p> <p>The defendants employed the plaintiff to frame and build a bridge on their road across Sugar creek, and while ho was engaged in the work, the defendants directed him to proceed in their cars to Greenwood, and assist in loading timbers for the bridge. While thus on their cars as directed, the servants of the defendants who had in charge the running of the train, so carelessly managed and ran the same, without the leave, sanction, or consent of the defendants, that they were thereby run off the track; by means of which the plaintiff’s right hand was fractured and permanently injured, so as to disable him from pursuing his business of house-carpenter. Held, that the plaintiff was a passenger, and that the defendants were liable for the injury.</p> <p>A railroad company is liable to a servant for an injury occasioned by the negligence of other servants of the company, where the duties of the latter, in connection with which the injury happened, were not common nor in the same department with those of the injured servant, and where the negligence of the injured servant did not contribute to produce the injury.</p> <p>The circumstance that a passenger who has received an injury while on the cars of a railroad company, by the negligence of their servants, was traveling free of fare, does not exempt the company from liability for the injury.</p>

<p>Section 3, p. 49, acts of 1840, which enacted that on all judgments which had been replevied under the then existing laws, but not fully satisfied, and on all judgments on which a stay had expired and execution had been issued, and levied or not levied, the execution-debtor might replevy the same, in addition to the former stay, for six months after March 1, 1840, was unconstitutional and void.</p> <p>That section being a nullity, the replevin-bail could enjoin a sale of his property on an execution issued upon the judgment.</p> <p>A statute which is in conflict with the constitution, is a nullity, and inoperative for any purpose.</p>

<p>A mother died intestate, leaving personal property. No letters of administration were taken out upon her estate. The guardian of her children took possession of the property, and realized from it a certain sum, &c. Held, that the sureties on his bond were responsible for a faithful application, &c., of such money.</p> <p>The bond given by a guardian in assuming the duties of his trust, was, by the E. S. 1838, only designed to secure the faithful appropriation and investment of the personal estate of the ward, including the rents of the real estate.</p> <p>A guardian applied to sell real estate of his ward, and sold the same while the R. S. 1838 were in force, under an order of the Probate Court, without having given an additional bond pursuant to the statute. Held, that the sureties on the original bond were not responsible for the accounting for or application of the purchase-money.</p>

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

<p>Fraud vitiates a pardon or remission.</p> <p>When it may reasonably be inferred from the language of a pardon or remission, considered in connection with the record of the cause in which it was granted, that the executive was deceived or imposed upon by those procuring it, by false statements or an omission to state relevant facts, the pardon or remission is void.</p> <p>L. in March, 1839, being in prison charged with the crime of murder, was let to bail by one of the associate judges, upon his executing a recognizance for 2,000 dollars, with sureties, for his appearance, &c. Having failed to appear and answer to the recognizance, he and his sureties were defaulted. Judgment was afterwards rendered against them upon scire facias, and subsequently, in October, 1839, the governor remitted to the sureties 1,500 dollars, part of the recognizance, by an instrument reading as follows: “David Wallace, governor of the state of Indiana. To all who shall see these presents, greeting. Know ye that I hereby remit unto G. Duignan” (and the other sureties, naming them) “the sum of fifteen hundred dollars, it being part of the amount of a judgment on forfeiture of recognizance rendered against them at the last term of the Owen Circuit [Court], as security for the appearance of, &c. The signature of the governor and seal of the state were annexed, and the instrument was duly attested by the secretary of state. The constitution in force when the instrument of remission was executed, gave the governor “power to remit fines and forfeitures, grant reprieves and pardons, except in cases of impeachments.” The instrument not stating the crime for which L. was to appear and answer, nor the amount of the judgment upon the forfeiture of the recognizance, held, that it must be presumed that the governor was not informed of these facts, and that the recognizance was therefore void.</p>

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

<p>An affidavit, under the R. S. 1843, to procure a change of venue, in a civil suit, on account of local prejudices, was not required to specify the cause of such prejudices.</p> <p>The time to he occupied in the argument of a cause, must necessarily he left to the sound discretion of the Court trying the cause, and unless that discretion is grossly abused, the Supreme Court will not interfere.</p> <p>Where evidence has been excluded by the Court trying a cause, it will be presumed that it was done correctly, where the contrary does not appear.</p> <p>A verdict is not vitiated by being returned and received on Sunday.</p> <p>Case by A. against B. for erecting a mill-dam below the plaintiff’s mills, on Blue river, whereby the water was backed upon his machinery, &c. The trial was while the R. S. 1843 were in force. A. having introduced one O. as a witness, B., to show C.’s interest in the suit, proposed to ask him if he had not a joint interest with A. in the mill, at the time the declaration alleged the injury to have happened; but the Court refused to let the question be asked.</p> <p>Held, that the question should have been allowed.</p> <p>Held, also, that s. 238, p. 80, and s. 243, p. 83, 2 R. S. 1852, which would now make O. a competent witness, do not cure the error.</p>

<p>General demurrers being no longer authorized, a special demurrer must prevail, if at all, for the specific cause assigned, and no other.</p> <p>Under the R. S. 1852, the causes available on special demurrer are limited to six, which are particularly specified.</p> <p>Semble, that a demurrer assigning any other cause than those specified in the statute, might be rejected on motion, or treated by the Court as frivolous.</p> <p>The R. S. 1852 require that the allegations in a complaint to contest a will, shall set forth the unsoundness of mind of the testator, the undue execution of the will, that it was executed under duress, or obtained by fraud, or any other valid objection to the probate thereof. JMd, that but two causes were assigned on which the validity of the will could be contested — 1. The unsoundness of mind of the testator; 2. The undue execution of the will; and that duress and fraud were merely examples under the second head.</p> <p>It is not the spirit of the new code to encourage verbiage and fruitless technicality in pleadings.</p> <p>In a proceeding by complaint, under the E. S. 1852, to contest a will, it is sufficient to allege the undue execution of the will in general terms, without alleging whether by fraud, duress or otherwise.</p> <p>The manner of the undue execution of the will, is, in such cases, matter of evidence.</p> <p>The naked opinion of one not a subscribing witness to a will, as to the sanity of the testator, is not admissible in evidence.</p> <p>But if the witness has had any acquaintance with the testator, and has given the materials from which a conclusion may be drawn as to the state of his mind, such as his manner, conversation, &e., at or near the time of the execution of the will, the witness maybe asked what impression the facts stated made upon him, as to the soundness of the testator’s mind.</p> <p>Even as to time there is considerable latitude. If the deceased never was of sound mind, that may be shown, and, also, the extent of the unsoundness. So, likewise, if the diseased mental action had intervened at a later period of life.</p> <p>Where the unsoundness of the testator’s mind at or near the time of making the will has been established, the burden of proving soundness or a lucid interval when the will was made, is upon the party seeking to sustain the will.</p> <p>When the sanity of the testator is in question, evidence is admissible to show the amount, situation, &e., of his property, as circumstances bearing on his mental condition.</p> <p>In a proceeding under the E. S. 1852 to contest a will, on account of the unsoundness of mind of the testator, the plaintiff need not prove that the testator was not of sufficient disposing memory; the statute only requiring proof of unsoundness of mind.</p> <p>Where unsoundness of mind is established, the burden of proving a sufficient disposing memory when the will was executed, is upon the defendant.</p> <p>Where a party requests that the charge to the jury shall be reduced to writing, the Court can not accompany it by verbal explanations.</p>

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

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

<p>It is the province of the jury to reconcile the conflict and determine the preponderance of testimony.</p> <p>An addition to or alteration of a will does not operate to revoke it, unless made animo revocandi, and that intention, to be effectual, must be evinced in the mode prescribed by the statute.</p> <p>A will having been duly signed by a testator and attested by the subscribing witnesses, the testator afterwards inserted therein an additional bequest. The insertion was made by the scrivener who wrote the will, in the testator’s presence, and by his direction. The original subscribing witnesses were also present, recognized the paper to which their names were signed, were called upon by the testator to witness the additional provision, and saw it inserted. Held, that the new provision became part of the will, and that the will, as amended, was duly executed and attested.</p> <p>The date is not a material part of a will. It may be held valid though it has no date or a wrong one.</p> <p>The actual time when a will was executed may be proved by parol.</p>

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

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

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

<p>Real estate acquired with partnership funds, for partnership purposes, is considered as partnership property, and first applied to the satisfaction of the partnership debts.</p> <p>The widow of a deceased partner is not entitled to dower in such real estate, under the R. S. 1843, until the debts of the partnership are satisfied.</p> <p>Section 80, p. 427, and s. 84, p. 428, of the R. S. 1843, enlarged the estate in which a widow was to be endowed, but were otherwise merely declaratory of the common law.</p> <p>Courts of Equity regard a partner’s real interest in the firm to be his share of the surplus after the debts of the firm are paid and a final balance ascertained; and allow each partner alien on the funds for his share of the surplus, as well as for his indemnity against the joint debts.</p>

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

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

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

<p>A policy of insurance contained a stipulation that the assured, in case of a loss by fire, should forthwith procure a certificate under the hand of a magistrate or notary most contiguous to the place of the fire, not of kin, &c., that he had without fraud, &c., sustained loss to the amount claimed, &e.</p> <p>Held, that a certificate from the nearest magistrate or notary was essential.</p> <p>Held, also, that in case of two magistrates near the fire, any distance as between them, was material.</p>

<p>Suit by A. against B. for money paid, &c. It appeared that a judgment had been rendered against C., D., E. and A., upon which B. had become replevin bail, and that A. was compelled to pay it on execution. Neither the judgment nor execution showed that any of the judgment-debtors were sureties in the original debt. But it appeared, in the present case, that C. was the principal debtor and D., E. and A. sureties. B. having become indebted to C., promised C. to pay the debt by payment of the judgment, and also told A. that should he, A., be compelled to pay it, he, B., would repay him. There was no evidence that any of the parties were insolvent. Sdd, that the suit would not lie.</p>

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

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

<p>A judgment will not be reversed for the insufficiency of the evidence, where the record does not profess to contain all that was given.</p> <p>A motion in arrest of judgment supersedes a motion for a new trial.</p>

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

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

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

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

<p>Where commissioners appointed to assign dower refused or neglected to act, the Court was authorized, by the R. S. 1843, to appoint others in their stead.</p> <p>The right of the Court to appoint other commissioners to act, upon a refusal or failure of commissioners previously appointed, exists, also, independent of any statute.</p> <p>The evidence of commissioners appointed to assign dower may he heard in impeachment of them assignment.</p>

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

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

<p>The answer of the defendant in chancery, under oath, can ho overcome only by at least one witness and strong corroborating circumstances.</p> <p>In chancery, the conclusions of the Court on the evidence presented, are entitled to the same weight as the verdict of a jury.</p> <p>The verdict of a jury will not be set aside by the Supreme Court, unless it is clearly wrong.</p>

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

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

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

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

<p>A suit in chancery was tried, after the R. S. 1852 took effect, as a suit at law, upon oral testimony and depositions. There being sufficient evidence in the record to sustain the judgment, held, that the Supreme Court would not examine into the relative credibility of the witnesses or the weight of the evidence.</p>

<p>Writs of error, under the R. S. 1843, were only allowed from final judgments.</p>

<p>A motion for a new trial was refused, but no exception was taken to the refusal, nor was the evidence inserted in the record. Held, that nothing was presented for review.</p> <p>The R. S. 1852 require a judge’s charge to the jury to be filed among the papers of the cause, only where a party has asked that it should he put in writing.</p> <p>A party, by not excepting to instructions given, waives all objection to them.</p> <p>A party, by not excepting to the refusal of a motion in arrest, waives the objection.</p> <p>The writ of error being abolished in criminal cases by the R. S. 1852, only such errors can be noticed as are judicially presented by the statute.</p>

<p>Prior to the act of 1851, (Laws 1851, p. 47), the overruling of an objection to evidence could not be assigned for error, unless the record disclosed that the ground of objection had been pointed out to the Court below.</p> <p>While that act was in force.the rule was different.</p> <p>It was agreed between the parties to a suit that the defendant might offer in evidence, under the general issue, any defence which he could if the same were pleaded specially. Held, that the defendant was excused by the agreement from proving the execution of a written instrument set up in defence.</p>

<p>ERROR to the Delate are Circuit Court.</p>

<p>In a suit by a supervisor for the obstruction of a county highway, a certified transcript of the proceedings of the board of commissioners establishing the highway, was, under the R. S. 1843, admissible in evidence.</p> <p>A public road, not recorded, which had been used for twenty years or more, was, under the act of 1849, a public highway.</p> <p>A road which hy twenty years’ use becomes a public highway, is of no established width by law; but its width as used at the end of twenty years, can not legally be intruded on.</p> <p>The highway act of 1849 required that the persons to be appointed viewers of a proposed highway, should be disinterested freeholders.</p> <p>Held, that a person who had signed a petition for the road, was not a disinterested freeholder. •</p> <p>Held, also, that in a suit for obstructing the road, an objection that one of the viewers was a petitioner therefor was fatal.</p> <p>A person who had obstructed a county road was not entitled, under the act of 1849, to notice to remove the obstruction, before the bringing of suit.</p>

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

<p>A., being a trustee appointed by a will, in breach of the trust, executed to B., who had notice of the trust, a bond conditioned for the conveyance to him at a stipulated period of certain real estate left by the testator. In a suit by A. against B., before the time fixed for executing the conveyance, upon a promissory note given for an instalment of the purchase-money, held, that the inability of A. ever to execute to B. a valid conveyance of the land, was a sufficient defence to the action.</p> <p>A testator after bequeathing the use and revenue of all his property in, &c., to his brother and sisters during their lifetime, provided by the will that after the decease of any one or all of them, the share that each of them should have in the property was to be applied, a part in Pennsylvania, and the residue in the United States generally, “for the diffusion of useful knowledge and instruction amongst the institutes, libraries, clubs or meetings of the working classes, or manual laborers who earn their bread by the sweat of their brow,” &c. Held, that the bequest could be sustained as a charity.</p>

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

<p>A subsequent indorser of a negotiable note, who pays it under compulsion, need not show that he was duly notified of the non-payment by the maker, to sustain an action against his indorser.</p> <p>In a suit by an indorsee against the indorser of a promissory note, it is sufficient to prove that the defendant had due notice of non-payment by the maker, from any party to the note.</p>

<p>If a bidder at a sheriff’s sale of real estate makes false representations to deter other bidders, and is successful, his purchase is fraudulent and void.</p>

<p>By the assignment of a promissory note, the assignor warrants that the note is valid, and that the maker is liable to pay it.</p> <p>The only contract binding on an infant is the implied contract for necessaries.</p> <p>The express contracts of an infant, as by bond and note, are not, as such, binding, and can not he enforced without ratification, even if given for necessaries.</p> <p>Whether the articles furnished to an infant were, in the particular case, necessaries, is a question of law, to he determined by the Court. Their quantity, quality and value, are to he ascertained by the jury.</p> <p>The assignee of a promissory note made by an infant, may proceed in the first instance against the assignor, without suing the maker.</p> <p>Suit by the assignee against the assignor of a promissory note given by an infant. The declaration, after alleging the making and indorsement of the note, &c., and the infancy of the maker, averred that the note was not given for necessaries.</p> <p>Held, that, even admitting the liability of the infant if the note was given for necessaries, the averment that it was not so given was surplusage, and imposed no additional proof upon the pleader.</p> <p>Held, also, that if, between the making of the note and its maturity, the infant had arrived at full age and ratified his express contract, the burden of proving that fact was upon the defendant.</p>

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

<p>Trespass, before a justice of the peace, against several defendants, part of whom only were served with process. Judgment was rendered against the defendants summoned, and they took an appeal to the Circuit Court. In the Circuit Court judgment was rendered against the defendants who had been summoned, and also against a defendant who had not been summoned nor appeared to the action. Held, that as to him the judgment was a nullity.</p> <p>In trespass against several defendants, if the plaintiff proves a joint trespass against part of the defendants only, he can not afterwards give evidence of another trespass by all, even against such part alone.</p> <p>In trespass quare clausum fregit, it must be proved that the trespass was committed in the county where the premises are situate.</p>

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

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

<p>To sustain an action for a nuisance, under s. 17, p. 89, of the acts of 1853, it is necessary to show that the defendant had the control or ownership of the house, &c.</p>

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

<p>Section 66, p. 261, 2 R. S. 1852, gives the Court the discretion in making the allowance of claims against estates, to examine the claimant upon oath; hut this section does not apply to regularly instituted suits at law.</p>

<p>Assumpsit on a note made in the city of New-YorTc, and payable there. The declaration after alleging these facts in due form, further alleged, that by a public statute of the state of New-York on the subject of the interest of money, in force at, &c., it was enacted that the rate of interest upon the loan or forbearance of any money, goods, or things in action, should continue to be at the rate of 7 dollars upon 100 dollars for one year, and after that rate for a greater or less sum, or for a longer or shorter time. The declaration, in other respects, was in the usual form under the former system of pleading. Demurrer to so much of the declaration as related to the statute of New-York, and the demurrer overruled. Held, that the statute was pleaded with sufficient certainty.</p>

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

<p>It is error to proceed to the trial of issues in fact before the jury where issues of law remained undisposed of.</p>

<p>Bill by the administrator of A. against the administrator of 23. to rescind a contract between A. and B. for the sale of land, &c., or to order a repayment of the purchase-money, and in default thereof, that the land should be sold. The facts were, that A. had conveyed the land by deed in fee to 23., the latter agreeing to pay the purchase-money within a reasonable period and to secure the same by giving a note to G. for A.’s benefit. B. had not paid the purchase-money, and had failed and refused to execute the note; but his estate was not shown to be insolvent or insufficient to pay all the demands against it; nor was any fraud or mistake alleged or proved. 2Ield, that no ground for relief was shown..</p>

<p>Under the act of 1843, the right of the widow to 150 dollars, in property or money, out of the estate of her deceased husband, was absolute, and vested immediately on his death.</p>

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

<p>A guardian has not a vested right to he governed, in relation to the time of filing inventories, by the statute in force when he was sworn; but he must comply with any changes made by subsequent statutes.</p> <p>Section 9, p. 324, 2 R. S. 1852, defining the time within which a guardian shall file inventories, and the consequence of a neglect, is applicable to all guardians, whether appointed before or since its publication.</p>

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

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

<p>The remedies provided by s. 69, p. 445, 2 R. S. 1852, and s. 26, p. 467, 1 R. S. 1852, against supervisors, for failing to keep the highways, &c., in their districts in repair, are cumulative.</p> <p>A supervisor, having moneys in his hands necessary for the repair of the highways of his district, is not authorized hy s. 361, p. 468, 1 E. S. 1852, to delay all expenditures of the same until the 15th of September of each year.</p>

<p>On the trial of a complaint for retailing, under the liquor act of 1853, the Court instructed the jury that if they should find that the defendant sold, &c., a spirituous liquor by a less quantity, &c., in, &c., since, &c., without license, they should find him guilty. Held, that retailing for sacramental, mechanical, chemical, medicinal, or culinary purposes, being authorized by the act, and there being some evidence to show that the selling was for some of the excepted purposes, the instruction was erroneous.</p>

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

<p>Instructions -will not be regarded as erroneous, where the evidence is not sot out in the record, if there might be a state of facts to which the instructions would be applicable.</p>

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

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

<p>Where premises are let for a specific term, the tenant is not entitled to a notice to quit.</p>

<p>In all cases of misdemeanors, where the indictments were found prior to May 6, 1853, the Circuit Courts have jurisdiction.</p>

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

<p>Assault and battery, which is simply a misdemeanor, is not included in any of the degrees of felonious homicide.</p> <p>The assault and battery, in a case of felonious homicide, is merged in the felony.</p> <p>On the trial of a prisoner on an indictment for murder, the jury, by their verdict, found him guilty of an assault and battery.</p> <p>Held, that the verdict was a nullity.</p> <p>Held, also, that the defect could be reached by motion in arrest.</p> <p>Held, also, that the indictment still stood against the prisoner, and that he must again be put on trial.</p>

<p>Assumpsit by A. against B., administrator of C. The declaration contained four counts. The first alleged that A., in 1841, purchased of O. a tract of land, for 2,000 dollars, for which A. gave his notes, and that thereupon C. executed a bond for a conveyance; that A. took possession, &c., held the land for two years, and made improvements on it worth 1,000 dollars; that in 1844, A. and C. entered into an agreement to rescind the contract of sale, A. stipulating to surrender possession of the premises and cancel the bond, and O. agreeing to give up the notes and pay for the improvements; that accordingly G. obtained possession of the land and bond; but that no payments had been made for the improvements, either by G. or by B. bis administrator. The second count was for goods sold; the third for money paid; and the fourth for work and labor. Nine pleas. The 1st, 2d, 7th and 9th led to issues of fact. The 3d, 4th and 5th were pleas of the statute of limitations. The 6th, which was to the first count, alleged that C. never executed the title-bond mentioned in that count. This plea was verified by oath. The 8th averred that A. did not, within one year after B.’s appointment as administrator, file in the clerk's office a statement of his claim, nor at any time before the commencement of the suit, notify B. of said claim. Beplication to the 3d, 4th and 5th pleas, that G. died on the 29th of January, 1849, which period was within six years after he made the promises sued on, and that B. was appointed administrator on the 10th of March following; that during one year of the time which intervened between the promises and G.’s death, he was continuously a non-resident and constantly absent from the state and the jurisdiction of her Courts; that from the time of the promises to his decease, exclusive of the period of non-residence, only three years and eleven months had elapsed; and that just seven months intervened between the 10th of March, 1850, (the date at which said administrator was liable to be sued in the case), and the day on which the suit was actually brought.</p> <p>Held, that demurrers were correctly sustained to the 6th and 8th pleas.</p> <p>Held, also, that the replication to the 3d, 4th and 5th pleas was sufficient on general demurrer.</p> <p>A trial without an issue is erroneous.</p>

<p>In criminal prosecutions, another indictment pending for the same offence constitutes no ground of abatement.</p> <p>Indictment for forgery. A change of venue was taken from the Steuben to the De Kalb Circuit Court. The prisoner applied for a continuance on an affidavit alleging that A., B. and O. were material witnesses, &c.; that they resided in Steuben county; that he expected to prove by them that D. and E., two material witnesses, who were then in attendance to testify against him, were, at that time, persons of bad reputation, and ought not to be believed under oath; that the change of-venue was granted on the preceding Wednesday, and that on the next day he caused a subpoena to be issued for said witnesses by the clerk of the De Kalb Circuit Court, which was mailed to the sheriff of Steuben county, and received by him on Sunday last, and served on said witnesses on the next day; that the witnesses had not had sufficient time to be in attendance, but he believed he could procure their attendance at the then next term of the Court; that he knew of no other witnesses by whom he could prove the same facts; and that the affidavit was not made for delay, &e. Held, that the affidavit was sufficient.</p>

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

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

<p>On an appeal from the judgment of a justice of the peace, if the defendant, having been personally subpoenaed, fail to appear, the plaintiff's demand is taken as confessed.</p> <p>Proof that a person of the same name of the defendant, was served with the subpoena, is sufficient evidence, prima fade, of a service on the defendant.</p>

<p>MOTION to correct a judgment for costs and to recall a fee-bill.</p>

<p>Objections to instructions given must be made before verdict, or they are waived.</p>

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

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

<p>A justice of the peace, by the E. S. 1843, where the gravamen of the action was in tort and the damages claimed exceeded 50 dollars, had no jurisdiction.</p> <p>When a bailment is for the sole benefit of the bailee, the law requires great diligence on his part and makes him responsible for slight neglect.</p>

<p>When the words of a statute are susceptible of two different senses, the Court will adopt that sense which will not lead to an absurdity.</p> <p>The intent of a statute, as collected from an examination of the whole and all' its parts, will prevail over the literal import of particular terms and control its strict letter, where the letter would lead to possible injustice and contradictions.</p> <p>Section 82 of the “act for the incorporation of cities,” approved June 18,1852, was intended to provide a mode for the annexing of lands to cities in all cases not provided for by section 81 of the same act.</p>

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

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

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

<p>Complaint by A., filed on behalf of himself and others, against Greencastle township in Putnam county, and B., the county treasurer, to enjoin the collection of a tax assessed by said township, under s. 130, c. 98, 1 R. S. 1852. The answer of the township admitted B.’s tax as stated, but denied the same as to the others for whom he sued. It also admitted facts which B., in bis answer, denied. It also alleged, by way of estoppel, that B. voted at the election by virtue of which the assessment was made.</p> <p>Held, that the admissions of the township could not be qualified by B.’s answer.</p> <p>Held, also, that a decree, upon demurrer to the answers, enjoining the collection of “all and any of the taxes named in the complaint,” was too broad.</p> <p>Held, also, that B. was not estopped, by having voted at the election, from denying the legality of the assessment.</p> <p>Section 130, c. 98, 1 R. S. 1852, which provides that “the voters of any township shall have power, at any general or special meeting, to vote a tax for the purpose of building or repairing school houses, and purchasing sites therefor, providing fuel, furniture, maps, apparatus, libraries or increase thereof, or to discharge debts incurred therefor, and for continuing their schools after the public funds shall have been expended, to any amount not exceeding annually fifty cents on each one hundred dollars of property, and fifty cents on each poll,” is, as to the mode of levying tax and paying tuition, repugnant to the constitution.</p> <p>The discretion of Courts is more restricted in applying the rules of construction to a plan of government contained in a written constitution, than in the construction of statutes.</p> <p>In the construction of the constitution, words must be understood to have been used in their natural sense.</p> <p>Tn the construction of the constitution, Courts have nothing to do with the argument from inconvenience — their duty being simply to declare what the constitution has said.</p> <p>Note. — The opinion given in this case on overruling the petition for a rehearing, was delivered on the 16th day of January, 1855, but is inserted immediately after the original opinion, by request of the Court; and the syllabus applies to both opinions.</p>