Volume 6 — Blackford's Indiana Reports

<p>Appeal by State—Bastardy.—The State may appeal to the Circuit Court from the judgment of a justice of the peace in favor of the defendant in case of bastardy; and no appeal bond is required in such case, (a)</p> <p>Same—Practice.—The Circuit Court, on such appeal, may order a writ to issue to compel the defendant’s appearance.</p> <p>Bastardy—Evidence.—The complainant in such case (the child being unborn), having been examined on the trial as a witness for the State, may be asked on cross-examination, whether she had had sexual intercourse with any other person than the defendant about the time when she said the child was begotten ; but not whether she had had such intercourse at any other time. (b)</p> <p>Same.—The statute authorizes the general moral character of a witness to be inquired into; but the inquiry should be, not what it was at any former period, but what it was at the time of the trial.</p> <p>Same.—A witness for the defendant in a case of bastardy having stated, on cross-examination, that the defendant had always denied being the father ol the child, was asked by the defendant to relate all he had heard him say about the matter. Held, that the question was improper.</p> <p>Note.—Judge Deivey was absent during the first week of this term, in consequence of the indisposition of his family.</p> <p>Same.—The credit of a witness can not be impeached by proof of particular facts.</p> <p>Same.— ’’In a case of bastardy, which is a civil suit, the defendant can not introduce evidence of his general good character, (a)</p> <p>PRACTICE.—If the complainant’s examination before the justice in such case, which was reduced to writing, be not introducid as evidence on the trial in the Circuit Court, neither party can refer to it in argument.</p> <p>Evidence.—If there be a preponderance of evidence in such case against the defendant, he may be found guilty.</p>

<p>Promissory Note—Joinder op Parties.—The assignee of a promissory note negotiable and payable at a branch of the State Bank, may, by virtue of the statute, join the maker and indorsers of the note in one suit; but he can not so join the maker and part of the indorsers, unless those not joined are dead.</p> <p>Same.—Although the declaration in such case show that the maker and part only of the indorsers are sued, it should not, on that account, be demurred to, but the non-joinder should be pleaded in abatement, unless the declaration show that the party omitted is alive.(a)</p> <p>Practice.—If a declaration contain one good count, a demurrer to the whole declaration should be overruled.</p>

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

<p>Note Payable in Bank—Defenses.—Debt by the assignee of the payee against the maker of a promissory note negotiable and payable at a branch of the State Bank. The note was assigned before it became due. Pleas, 1, That the note was, executed without consideration; 2, That the payee obtained the note of the defendant by fraud; 3, That the consideration of the note had failed. Held, on general demurrer, that the pleas were insufficient, (a)</p>

<p>Witness.—In a suit against a guarantor for the price of goods sold to another upon the defendant’s letter of credit, the person to whom the goods were sold is a competent witness for the plaintiff.</p> <p>Letter of Credit.—If a letter of credit state, that the writer will guaranty the payment of goods to be afterwards sold to another, or that lie will see the goods paid for, or that he will be security for their payment, the promise is only collateral. In such cases, the person to whom the goods are sold is liable on a general count for goods sold and delivered; but the writer of the letter can only be sued on the special contract.</p> <p>Same.—To sustain a suit on such collateral promise, the plaintiff must prove that he had, within a reasonable time after the debt became due, demanded payment of the principal debtor, and given notice of his nonpayment to the defendant. But even if such proof were not generally necessary to charge the guarantor, still he would not be liable without it, if the principal debtor was solvent when the debt fell due and after-wards became insolvent, (a)</p>

The declaration in this suit states, that the note and indorsements described in it were executed at Cincinnati in tbe State of Ohio; that the indorsements were made before tbe note became due; and that the note was payable at the Commercial Bank in Cincinnati. It also sets out the statute of Ohio which governed the ease, and which is similar to the law-merchant.

<p>Bailment.—Assumpsit for goods sold, &c. Pleas, non assumpsit, &c. The1 facts were as follows : The plaintiff being the owner of two thousand gunny bags, instructed a warehouseman in whose possession they were, to deliver them to the defendant if he called for them, but if they were not so called for, to sell them. The defendant called and received the bags— paying the warehouseman his charges, &c. At the time of this transaction, there was a contract between the plaintiff and defendant for a quantity of corn to be delivered by the latter to the former in bags; which corn was not delivered. Held, that these facts did not sustain the suit.</p>

<p>Challenge to Fight.—The giving of a verbal challenge to fight a duel is an indictable offense.</p>

<p>VENDOR AND PURCHASER—MINOR HeIRS—CONVEYANCE.— If a person who has contracted with another to convey to him certain real estate, die without having executed the conveyance, leaving several heirs, one of whom is a minor, the purchaser is not bound to accept a-deed for the land from the adult heirs, and a bond of the guardian of the minor with surety, conditioned for the minor’s conveyance when he shall come of age.</p> <p>Same -.Rescission or Contract.—If a person enter into a legal contract for the purchase of real estate, pay part of the purchase-money, and occupy the premises some time under the contract, he can not, on the vendor’s breach of his agreement to eonvey, rescind the contract, and recover back the money paid in indebitatus assumpsit; his only remedy, in such case, being on the special contract, (a)</p> <p>Statcte op Frauds—Receipt.—A receipt for the purchase-money of real estate may constitute a sufficient agreement under the statute of frauds, provided it shows on its face, or by reference to some other instrument,, every material part of a valid contract on the subject, but not otherwise.(b)</p> <p>Same.—The doctrine of Courts of equity, that payment of part of the purchase-money on a parol contract for real estate, and taking possession of the premises under the contract', is such a part of performance as takes the case out of the statute of frauds, does not prevail in courts of law.</p> <p>Recovery back op Purchase Mosey.—Indebitatus assumpsit lies to recover back money paid by a purchaser on a parol contract for real estate where the vendor or his heirs are unable or *fail to perform their part of the contract, notwithstanding the vendee may have occupied the land under the contract.</p> <p>Pleading—Practice.—Assumpsit on a promise of the defendant’s intestate; plea that the defendant did not promise, and issue. Held, that the issue was immaterial. Held, also that a replication to a plea of payment by the defendant’s intestate, that the defendant did not pay, is bad. Held, also, that as the declaration only claimed money paid to the intestate, evidence of money paid to the defendant was inadmissible.</p>

<p>Repeal oe Statute.—A judgment vesting in the State a title to land for the non-payment of taxes, rendered since the act of 1835 on the subject was repealed by that of 1839, is a nullity.</p>

<p>Defective Pleading.—A defendant can not object to a judgment against him, on the ground that his own pleading is defective.</p> <p>Partnership—Contbact.—If one of two partners, in the presence of the other and with his consent, subscribe the names of both to a note and put a seal to it, it is the deed of both.</p> <p>Submitting Cause to Court.—A cause having been submitted to the Court, under the statute, stands as if it had been submitted to a jury.</p>

<p>EREOR to the Scott Circuit Court.</p>

<p>ERROR to th(¿.Morgan Circuit Court.</p>

<p>Concealed Weapons—Indictment.—An indictment for carrying a pistol concealed, &c., need not state that the pistol was loaded.</p>

<p>Constable s Bond—Suit on.—In a suit on a constable’s bond because of the illegality and insufficiency of the constable’s return to a fieri facias, the declaration should show what the return was which is alleged to be illegal and insufficient.</p> <p>Same—Pleading.—If a declaration in such suit setting out the condition of the bond, &c., be demurred to, and the demurrer be overruled, the damages should be assessed by a jury.</p>

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

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

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

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

<p>Pleading—Pbactice.—If one of several replications to a plea of payment and set-off be good, it is sufficient to sustain the action.</p> <p>Same.—To a plea of payment and set-off, relying upon a note executed by the plaintiff to a third person and assigned to the defendant, the olaintiff may reply that the assignment was obtained by fraud.(a)</p>

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

<p>Note Payable ns Bank—Liability op Iedobsei}.—If the payee and owner of a promissory note negotiable and payable at a chartered bank within the State, indorse it to a third person, and be afterwards sued by the latter on the indorsement, he may defeat the suit by showing that the indorsement was made without consideration; and a plea to that effect, stating also that the note was not designed to be negotiated in bank, &c., is not objectionable for duplicity.</p> <p>Same.—But if the indorsement of such note—tne indorser not being the owner, be made for the maker’s accommodation, and the indorser be sued by a bona fide holder for value who received the note before it was due, the want of consideration for the indorsement is no defense to the suit, though the plaintiff knew, when he received the note, for what purpose the indorsement was made; and the circumstance that the note was not nut in circu lation, &c., makes no difference.</p>

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

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

<p>Practice—Withdrawing Pleas.—The Circuit Court refused to permit the defendant to withdraw one of his pleas after some of the jurors were sworn, the withdrawing of which would have deprived the plaintiff of the rig-lu io open and close the cause to the jury. The Court said that, admitting th-w had a supervisory power over the discretion of the Court below in su- h case—a point not decided—they saw no reason for supposing that the discretion, in this case, had been improperly exercised.</p> <p>Separation or Witnesses.—At the time of swearing his witnesses, and before they were examined, the defendant moved the Court to remove such of the plaintiff’s witnesses out of hearing as the latter held in reserve,, which motion was overruled. Held, that the, granting or refusing such motions is a matter of discretion, which did not appear to have been unsoundly exercised on this occasion.</p> <p>SUPPRESSING Deposition.—If a deposition be improperly suppressed, the party waives the error by introducing another deposition of the same witness, testifying to the same facts.</p> <p>Slander—Justification—Damages.—Slander for charging the plaintiff with perjury. Pleas, the statute of limitations and a justification that the words were true. Semble, that the general bad character of the plaintiff in such case may, even under a justification, be proved with a view to lessen the damages.(a)</p> <p>Held, that in such case, the existence of prior reports charging the plaintiff with the crime imputed to him by the defendant, without any offer to ^explain their extent, or effect upon the character of the plaintiff, is not, under a plea of justification, legal evidence in mitigation of damages.</p> <p>Hdd, also, that there may perhaps be cases in which the evidence—showing, not the truth of the justification pleaded, but that the defendant had reason, from the glaring misconduct of the plaintiff, to believe the charge and plea justifying it to be true—may be considered by the jury in mitigation of damages; but that the record before the Court did not show such a case.</p> <p>Hdd, also, that this being a very aggravated case, the refusal to grant the defendant a new trial because the damages—$2,736—found by the jury were excessive, was not error.</p>

<p>*APPEAL from tlte Tippeeanoe Circuit Court.</p>

<p>ERROR to the Allen Circuit Court. The judgment was in favour of the plaintiffs below who are the defendants in error.</p>

<p>Perjury—Indictment.—An indictment for perjury charged the defendant with making an affidavit, that a certain boat was, as he believed, attempting to pass a certain place, &c., whereas he did not believe that the boat was attempting to pass said place, &c. Held, that the indictment was not objectionable for not alleging that the boat was not attempting to pass the place, &c.(a)</p>

<p>Replevin-Bail—-Scire Facias.—A adre fados against bail, which was issued by a justice of the peace in April, 1840, recited a judgment rendered by the justice against the original debtor in November, 1839, and alleged that the defendant, in November, 1840, entered himself as bail for the stay • of execution on said judgment for 150 days, which period had long since elapsed, &c. Held, that the sd. fa. could not be objected to, on general demurrer, on account of the repugnant allegations as to the time of the-entry of bail. Held, also, that a transcript of an entry of bail of a different date from the objectionable time *when the sd. fa. alleged the entry to have been made, could not be objected to as evidence on the ground of variance.</p> <p>Justices oe the Peace—Jurisdiction.—Though a note filed before a justice of the peace as a cause of action be, on its face, for a sum beyond his jurisdiction, yet if the amount actually demanded and recovered be within, it, the presumption is, that the note had been so reduced by credits as to authorize the justice, under the statute, to take cognizance of the cause.</p> <p>Authentication oe Transcript.—The transcripts of two judgments of a justice of the peace, written on the same sheet of paper, may be authenticated by one certificate of the justice, including in its terms both transcripts. V</p> <p>Entry oe Bail.—Bail for the stay of execution of a judgment rendered by a justice of the peace, must be entered on his docket, and is a matter which may be proved by a transcript, at least when the entry is not denied on oath.</p> <p>Evidence.—If an instrument of writing be stated in pleading to have been made on such a day, without alleging when it was dated, an instrument dated on a different day from that stated may be given in evidence.</p> <p>Return oe Oeeicer.—In a scire facias against bail for the stay of execution, he is not permitted to show that the officer’s return to the execution against the principal debtor is false.</p>

<p>APPEAL from the De Kalb Circuit Court.</p>

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

<p>Promissory Rote—Pleading.—A promissory note was filed in debt as the cause of action, and the general issue pleaded without oath. Held, that the execution of the note was admitted, (a)</p>

<p>Deliyeey Bond Construed.—A bond conditioned for the delivery of goods taken on execution vas in the usual form, except that it did not state to whom the property was to he delivered. Held, that the legal effect of the condition of the bond, that "the property should be delivered at the time and place specified, was that it should then and there be delivered to the sheriff. Held, also, that a declaration in a suit on such bond, setting out the condition, &e., should aver that the properly had not been delivered to the sheriff.</p>

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

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

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

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

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

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

<p>.Possession—Evidence oe Title.—Possession of real estate is prima facie evidence of title, and must succeed until evidence of prior possession or higher evidence of title be produced.</p> <p>Same.—The possession of such property by an ancestor raises a presumption that he was seised in fee, and is sufficient, prima facie, to support an ejectment on the demise of his heirs.</p> <p>Ejectment.—A' joint demise by several heirs of real estate is sufficient to support ejectment.</p> <p>Assessment Roll, Evidence.—A duplicate of an assessment roll of taxable property was not admissible as evidence under the statute of 1817, unless verified by the certificate of the clerk of the Circuit Court.</p> <p>New Trial.—A party asking for a new trial on account of the discovery, since the trial, of a will material, &e., must show that, before the trial, the will had been searched for in the probate office.</p>

<p>PLEADING.—A suit in a justice’s Court was entitled, “ Allen Hamilton, Execu tor of James Wilcox v. Charles W. Ewing. Debt. Demand, $34.” And 8 promissory note given by the defendant to James Wilcox for $30, was filed as the cause of action. Held, that the cause of action was insufficient.(a)</p>

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

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

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

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

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

<p>Fokgery—Indictment.—An indictment charged the defendant with knowingly retaining in his possession certain dies, and plates, and other apparatus and instruments, made use of in forging, &e. Held, that the words “other apparatus and instruments,” in the indictment, were surplusage. Held, also, that to convict the defendant, it must be proved that he knowingly retained in his possession some instrument named in the indictment</p>

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

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

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

<p>8elt.tng Liqxtoe—Indictstent.— An indictment for retailing spirituous liquors within the borough of Vincennes, without license by the president and trustees, &c., need not aver the existence of the corporation, nor of an ordinance regulating the sale,.&c., nor show the kind of liquor sold.(a)</p>

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

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

<p>Disturbing Meeting—Indictment.—An indictment for disturbing a religious society, &c., may charge the defendant, in the same count, with disturbing the society and its members.</p> <p>Same.—Such indictment need not state the name of the society.</p>

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

<p>Conveyance, When a Mortgage.—An absolute conveyance of real estate, and the grantee’s bond of the same date for a reconveyance to the grantor on his payment of a certain sum of money, amount to a mortgage.(a)</p> <p>Recovery Back oe Purchase-Money.—If the money in such case be duly paid, and the grantee refuse to reconvey, he is liable to a suit on the bond.</p> <p>Equity oe Redemption may be Sold.—An equity of redemption on a mortgage in fee, whether the mortgagor be in possession or not—provided there be no adverse possession—may be sold on an execution at law.</p> <p>Pleading.—A substantial defect in a declaration may be cured by admissions in the plea.</p>

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

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

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

ERROR ta the Clay Circuit Court. This was a scire facias in favour of JEUcin, requiring the defendant to show cause why execution should not' issue on the transcript of a justice’s judgment, &c.

<p>JURISDICTION—Obstructing Highway.—The Circuit Court has not original jurisdiction to enforce the daily penalties incurred’ by suffering obstructions to remain in highways.</p> <p>Same.—Such penalties can only be sued for before justices of the peace.</p> <p>Same.—If a statute create a new offense or cause of action, and provide that a. particular tribunal shall take cognizance of it, no other court can enforce the law.</p>

<p>Due Diligence—Want on, against Maker oe jSTote.—An assignee of a promissory note obtained judgment in time against the maker, and, after a delay of more than six months, took out a fieri faeias on the judgment. The execution was returned nulla bona.' Held, that the delay in issuing the execution, unexplained by the assignee, discharged the assignor from his liability on the assignment, (a) .</p> <p>Practice.—If a declaration contain one good count, a demurrer to the whole declaration can not he sustained. . ■</p>

<p>Pleading.—If a plea profess to answer only a part of the cause of action, it can he considered as an answer only to that part, though it contain a legal defense to the whole declaration.</p> <p>Same—Practice.—i:iA.nd in case of such plea, the plaintiff may, before he replies to the plea, or afterwards during the term at which the plea was filed, take judgment by nil dieit for the part not mentioned in the beginning of the plea.</p>

<p>Chattel Mobtgage.—A mortgage of personal property may be acknowledged or proved before the recorder of the county.</p> <p>Same—Right op Pbopebty.—A mortgaged certain goods to B, but was to continue in possession of them, by the terms of the contract, for a definite time. An execution against A in favour of a third person was afterwards levied on the same goods in As possession; and B filed a claim to them under the statute regulating the trial of the right of property, but the time for which A was to possess the goods had not expired when the claim was filed. Held, that the claim could not be sustained, the claimant not having a right to the immediate possession of the goods, (a)</p>

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

<p>EEEOE to the Dearborn Circuit Court."</p>

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

<p>E-BvrvoB.—Pleading.—A bill of revivor and supplement stated who were the parties to the original bill, its object, the proceedings on it, and the abatement—showed the plaintiff’s right to revive—charged that the cause ought to be revived, and stand in the same condition with respect to the parties in the bill of, revivor, as it was in with respect to the parties to the original bill when the abatement happened—and prayed that the suit might be revived, &c. The supplemental matter then followed.</p> <p>Held, that that part of the bill which sought to revive the original suit wa3 valid, and, therefore, whether the subsequent part was good or not, a de-rnurrer to the whole bill could not be 'sustained:</p>

<p>*ERBOB to tlie JDeoatur Circuit Court.</p>

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

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

<p>Evidence—Admissions by Wife.—In a suit against husband and wife for a debt due by tbe wife dim sola, tbe plaintiff can not prove admissions made by the wife after her marriage respecting the debt.(a)</p>

<p>Mechanics’ Lien on Boat.—The person who builds a boat, &c., agreeably to his contraot with the owner, &e., has a lien on the boat, under the statute, for the price, whether he has paid the workmen that assisted him and were employed by him or not; but the workmen so employed by the contractor have no such lien for their wages.</p> <p>Same.—Whether in case of such claim by the contractor, evidence of an unsuccessful attempt by him and the owner, &c., to settle, &e., is sufficient to show the demand and refusal of payment required by the statute, &c., is not for the Court, but for the jury to determine.</p> <p>Same.—The contractor in such case can only recover, in the absence of a special contract, the value of the work, &c., at the place where the boat was built; the performance of which work, &c., must be proved.</p>

<p>EEEOE to the Tippeeanoe Circuit Court.</p>

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

<p>Assignment of Note—Pleading.—The declaration in a suit on a promissory note by a person not the payee against the maker, must aver an assignment of the note by the payee.</p> <p>Same.—An averment in the declaration in such case, that the payee assigned tiie note to the* plaintiff, is equivalent to an averment that the assignment was made on the note to the plaintiff under the hand of the assignor, and is sufficient.</p>

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

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

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

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

<p>APPEAL from the Warren Circuit Court. The appellant was the defendant below.</p>

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

<p>Bill of Exceptions.—A bill of exceptions, taken in a suit on the assignment of a promissory note, stated that the plaintiff produced certain evidence, viz., the following note and indorsement. (Insert said note and indorsement.) Held, that the bill did not show that the note and assignment, under which the plaintiff claimed, were produced at the trial'.(a)</p>

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

<p>bx.AXDm—Pleading.—The defendant, in a suit for slander brought by husband and wife, pleaded the general issue and several pleas in j ustification. Held, that the marriage of the plaintiffs was admitted by the pleas.</p> <p>Same.—Action of slander brought by A and Mary A, his wife, for the following words charged to have been spoken of the wife, and of and concerning her character for chastity: “ Have you heard that B was hunting up a story in circulation about 0 and Mary A (meaning, &c.), being seen in the woods together? I saw them in the woods together myself, &c. If you had seen what I have, you would feel satisfied in your mind. God knows and I know that they are intimate.” Thereby meaning that s^id Mary had been guilty of adultery with 0. Seld, that the words were not actionable, unless they were spoken in a conversation about the wife’s character for chastity. “JETeM, also, that as the general issue in said case was pleaded, as well as pleas admitting the speaking of the words, 'the plaintiff was bound to prove the cause of action in the same manner as if the special pleas had not been filed.</p> <p>Same.—The special pleas in said suit were, 1, That the words were true, without averring them to be true in the sense ascribed to them in the declaration ; 2, That before the speaking, &c., said Mary had been delivered of a-bastard child; 3, That before, &c., she had been guilty of adultery with G; ' 4, That before, &c., she had been guilty of adultery with D; Held, that. these pleas, except the. third, were insufficient.</p>

<p>Official Bonn—Pleading.—In a suit on a bond conditioned for the performance of covenants, the plaintiff may declare as on a common born3, without setting out the condition, &c.(a)</p> <p>Same..—The declaration, in a suit on a bond of a collector of taxes, after set- ■ ting out the condition, stated that an assessor was appointed by the board of commissioners, &c.; that he gave bond and took the oath required by law; that he made an assessment of the taxable property in the county, and delivered a list to said board, who corrected it, &e., and fixed the ratio; that the clerk made out and delivered to the collector a proper duplicate of the roll and tax list, Ac., with a precept commanding him, &c.; that the latter failed to collect, Ac. Held, that the performance of the duties of the assessor and clerk was shown with sufficient certainty.</p> <p>Pleading.—It is not necessary in pleading to state that which is merely matter of evidence.</p>

<p>Note Obtained by Pratjd—Rights op Assignee Against Maker.— Although a promissory note be obtained from the maker by fraud, &c., yet if he induce an innocent person to take an assignment of it .without disclosing the objection, he will be liable to the assignee on the note, notwithstanding the fraud, &c.(a)</p>

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

<p>Juris nicrioir.—In a suit before a justice of the peace for less than $20.00, the defendant claimed as a set-off $30.50, and the plaintiff obtained judgment for a part of his demand. An appeal by the defendant to the Circuit Court being dismissed, lie sued out a writ of error and obtained a superseded*. Held, that the Supreme Court had jurisdiction of the cause. .</p> <p>Awakd.—An award, on which a justice of the peace has rendered judgment, may be impeached before the justice within ten days from the rendition of the judgment; or it may be impeached in the Circuit Court on appeal, though it was not objected to before the justice.</p>

<p>Special Bail.—A scire facias on a recognizance of special bail indorsed,' as the statute requires, on a capias ad respondendum, should aver, inter alia, that the principal had not rendered'himself in discharge, of the judgment.</p>

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

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

<p>Pleading in Justice's Court.—When a written contract between the litigating parties is filed as the cause of action in a justice’s Court, the want of an averment of extraneous facts connected with the contract, and necessary to be proved on the trial to sustain the action, is not a fatal objection, if enough be stated to bar another suit for the same demand.(a)</p>

<p>Trespass—Pleading—Practice.—Trespass for an assault and battery. Plea, son assault demesne. Replications, 1st, Be injuria; 2d, Excess. The defendant having moved that the second, replication be set aside, the Court gave the plaintiff leave to select which replication he would retain. The plaintiff refused to make the selection, and the Court granted the motion. JSeld, that there was no error in this proceeding.</p> <p>Held, also, that the plaintiff had no right, on the trial of said cause, to ask a witness whether, in his opinion, the fight would have occurred, if the defendant had informed the plaintiff that he had a knife.(a)</p>

<p>Assignment on Note fob. Collection.—To a suit on a promissory note, brought by the assignee of the payee against the maker, the defendant pleaded that the note was assigned for collection only, the proceeds to be credited on certain notes given by the assignor. Held, that the plea was insufficient.</p>

<p>Joinder of Counts.—Counts in trespass quare clausum fregit, and for an assault and battery, may be joined.</p>

<p>Replevin—Pleading.—If in an action of replevin commenced before» justice of the peace, the affidavit filed be such as . the statute on the subject requires, no other statement of the demand is necessary, (a)</p>

<p>Grand Jurors.—Grand jurors can only serve for one year from the time they are selected.</p>

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

<p>LAW-MEECHAm- -Pleading.—Debt by A, indorsee of B, against 0 as surviving partner of the firm of G and D, on a promissory note executed in the name of the firm, and payable to the indorser. The note was executed and made payable in the State of New York, where it was negotiable by the law-merchant, and was indorsed before it was due.</p> <p>Pleas, 1, The general issue; 2, That before the indorsement, and before the note was due, C and J) executed other promissory notes to the payee, which the latter accepted in full satisfaction and payment of the note sued on.</p> <p>Held, on general demurrer to the second plea, that, by the law-merchant, which governed the case, that plea, assuming it to be valid in other respects, was insufficient for not alleging that, before the indorsement, the plaintiff had notioe of the payment. Held, also, that under the first plea, proof of the death of JD was not necessary to sustain the suit.</p>

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

<p>Advancement.—If a father purchase real estate with his own money in the names of his children, the purchase is an advancement to the children, and not a resulting trust for the father, (a)</p> <p>FRAUDULENT CONVEYANCES—SUBSEQUENT PURCHASER.—Such a purchase is not within the statute against fraudulent conveyances; and, therefore, a subsequent purchaser, though bona fide, will not be relieved against it. But if such purchase were within the statute, still a subsequent purchaser with •.notice could not take advantage of it.(b)</p> <p>®Same.—If a subsequent purchaser from the father in such case, obtain a decree for the land against the father and the children, the decree saving to the children, who are infants, the right to show cause against it when they come of age, and such purchaser afterwards sell the land to a third person, the circumstances, that the latter’s purchase was made whilst the decree was in force, will not, even though his purchase was bona fide, prevent the children, when they come of age, from having the decree and his conveyance set aside.</p>

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

<p>VENDOR and Purchaser—Contract to Convey.—A executed a promissory note to B, in consideration that the latter would convey to him, by a deed with full covenants, a certain tract of land. By virtue of an execution on a judgment existing against B at the time of the contract, the land was subsequently sold by the sheriff to Q; and after such sale on execution, B and wife executed to O a deed with general warranty for the land. After-wards, deeds for the land to A, by B and wife with full covenants, and by C and wife with covenants against Q and those claiming under him, were tendered to A, and payment of the note demanded. Reid, that A was not bound to accept the deeds and pay the note.(a)</p>

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

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

<p>EEEOE to the LaPorte Circuit Court.</p>

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

<p>Troves.—To sustain trover, the plaintiff must have had, at the time of the conversion, a general or special properly in the goods; hut it is not necessary that his interest in them should have continued until the commencment of the suit.</p>

<p>Justice's Docket—Evidence.—After an entry of judgment for the plaintiff on a justice’s docket, this statement followed, viz.: “ On, &e., comes the defendant and files an appeal-bond, but does not ask an appeal until he further considers the matter.” Held, that notwithstanding that statement, the defendant might, on appeal, show by affidavits that the sp ’eal was prayed for when the appeal-bond was filed.(a)</p>

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

<p>Mistake — Chanceby Jurisdiction.—A sale of land having been made under an order of the Probate Court, on petition for a partition, it was-held that a Court of chancery could not correct a mistake, as to the description of the land, in the notice, petition, order of Court, &c.</p>

<p>Decedent’s Estate—Execution against . Land.—If a petition to have execution against the real estate of a decedent, on a judgment against his executor or administrator, do not make the terre-tenants defendants, or aver there are none, it is defective; and the defect may be assigned for error.</p>

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

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

<p>Vendor and PubcbaseR—Pdeading.—Debt on a promissory note by tbe assignee of the payee against the maker. Plea, that the note was given in consideration of the purchase, by the defendant from the payee, of a certain tract of land; that the latter, at the time the note was given, executed to the former a bond conditioned for a conveyance of the land to him on the day the note was payable; and that no deed had, on that day or at any other- time, been made or offered to be made. Held, that the plea was good. Held, also, that a general replication to such plea, that the consideration had not failed in manner and form, <&c., was sufficient.(a)</p>

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

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

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

<p>Foreign Attachment—Practice.—On an appeal to the Circuit Court from a justice’s judgment in a case of foreign attachment,,the parties appeared and, by their agreement, the cause was tried by the Court. Judgment for the plaintiff. The judgment was objected to on error, because the attachment-bond was defective, and because publication of the pendency of the suit had not been made and proved before the justice continued the cause. Held, that the objections came too late.</p> <p>Same.—The above-mentioned suit was against several partners, and it was proved on the trial in the Circuit Court that one of them resided in this State when the suit was commenced. Held, that the suit might have been objected to on account of such residence by a plea in abatement, but that it was too late to make the objection after the defendants had appeared to the action, and entered on a trial of the merits.</p> <p>Same.—A writ of foreign attachment may issue, by statute, against partners in the name of their firm.</p>

<p>Paetnership—Chancuey Pleading.—A and B, on their discontinuance of ’ business as partners, agreed that B should collect the debts of the firm, and that the amount when collected should be equally divided between them. Held, that a bill in chancery afterwards filed by A against B for the complainant’s share of the money collected, was bad on demurrer, for omitting to state the time when the collection was made.</p>

<p>Attobney and Client—Witness. — An attorney brought suit on a note delivered to him for collection, and obtained judgment, which did not appear by the record to have been satisfied. The judgment-creditor sued the administrator of the attorney for the amount of the judgment, in an action for money had and received. Held, that the plaintiff could not introduce the judgment-debtor as a witness, to prove that the latter had paid to the attorney the money due by the judgment.</p> <p>Semble, that a stranger to a record can give it in evidence against the successful party, in a subsequent suit against such stranger for the same cause of action.</p>

<p>Bill of Review—Time.;—A bill of review founded on newly discovered evidence was filed October tlie 2d, 1832; and tlie discovery of. the new matter was averred to have been made in tlie summer of 1828. Held, that the bill appeared to be filed in time.</p>

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

<p>Fraud—Mental Incapacity.—Debt against the administratrix of A on a bond alleged to have been executed by A, B and C, jointly and severally. Plea, non est factum. The defendant offered to prove “ that G had great influence over A; that he had directed his distiller to let A have as much whisky as he wanted ; and that he, G, could lead A like a child.” Held, that the evidence was inadmissible.(a)</p> <p>Same.—Mental incapacity at the time of contracting, produced by drunkenness or any other cause, is a good defense against the- contract, whether it be by deed or parol.</p> <p>Same.—To avoid a bond on the ground that it was fraudulently obtained, it should appear that the obligee had an agency in the alleged fraud.</p>

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

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

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

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

<p>ChimiNAE Law—Pbactice.—An objection to an indictment because the grand jury that found it was irregularly impanneled, must be made by plea, and not by motion to quash.(a)</p> <p>Same—Liq,tjob Law.—An indictment for selling spirituous liquor contrary to the 56th section of the act relative to crime and punishment, should aver that the liquor was sold to be drunk in the house, &c., of the vendor.</p> <p>Same.—When an evil intent accompanying an act is necessary to constitute such act a crime, the intent must be alleged in the indictment and proved.</p>

<p>APPEAL from the Jaohson Circuit Court. The appellant, Benjamin P. Tuell, was the plaintiff below.</p>

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

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

<p>Practice.—The’ judgment in this ease not showing against whom it was rendered, the writ of error was dismissed.</p> <p>Bilí, of Exceptions.—The transcript of a judgment of a justice of the peace of B county, on which a scire facias to have execution is issued by a justice of the peace of 0 county, is no part of the record of the suit by seire facias, unless made so by a bill of exceptions.</p>

<p>The refusal of instructions to the jury (the record not showing them to be applicable to the case), can not be assigned for error.</p> <p>If a person unlaw fully injure another’s property, he is liable for the damage, without regard to the intention with which the act was done.</p> <p>An erroneous instruction to the jury can not be assigned for error, if the verdict is sustained by the evidence.</p> <p>A person who chases a horse out of his field with a large, fierce dog, commits an unlawful act, and is liable for any injury to the horse which that act occasions.</p>

The clerk omitted to state in the capias ad respondendum which issued in this case, either the nature of the action or the amount claimed.

<p>Replevin- -Pleading.—A plea in replevin, relying on *.'e defendant’s seizure of the goods as a constable under an execution against a third person, should aver the property of the goods to he in such third person.(a)</p> <p>Same.—A declaration in replevin by husband and wife, should show specially the wife’s interest in the goods.</p> <p>Same.—A plea in replevin of property in a stranger, or in the defendant, denies the plaintiffs property in the goods, and gives the plaintiff a right to begin.</p> <p>Charging Jury.—Special charges to a jury, which are included in a general charge previously given, should be refused.(b)</p>

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

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

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

<p>Betting—Indictments.—Indictment for unlawfully winning, &e., by betting on the result of an election. 2[eld, that it was no objection to the indictment, that the time when the bet was alleged to have been made was after the day of the election.</p> <p>Same.—An averment in such indictment, that the defendant did unlawfully win of, and take from, one N. O. two notes, &c., by betting on the result of the election, shows, with sufficient certainty, that the bet was made with A. 0.(a)</p>

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

<p>Betting—Vote Contract.—Two persons made a bet of goods of the value of §100 on the result of a Presidential election, and each executed his .promissory note to a merchant for that sum, the payee, with notice of the facts agreeing to furnish the goods to the winner. The loser was to pay his note, and the winner’s was to be void. After the election, a suit on the note given by the loser was brought by an assignee. Held, that though the goods had been delivered to the winner by the payee of the note, the suit could not be sustained, the consideration of the note being'illegal.(a)</p>

<p>*ÉRROR to the Shelby Circuit Court.</p>

<p>Refusing to Assist Offices.—The refusal, without a sufficient excuse, to assist a constable in preventing the escape of a person in his custody, is an indictable offense.</p> <p>Same.—The indictment in such case must show, that the defendant was informed of the official character of the constable.</p>

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

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

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

<p>] ‘ractice.—In an action against A, B, and G, on a joint promissory note, a suggestion on the record.that it was made known to the Court that A was • not found, is sufficient to authorize the plaintiff to proceed against B and G, they having appeared to the action and pleaded.</p> <p>JF Aeading.—A plea beginning in bar and concluding in abatement, is a plea in bar.</p> <p>Agreement not to Sue.—An agreement not to sue for a limited time on a promissory note, is no bar to a suit on the note commenced within that time, (a)</p>

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

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

<p>Want of Dixjgence.—The assignee of a bond obtained judgment in time against the obligor, and, after a delay of seven months, took out a fien facias on the judgment. The obligor’s real estate (being all the property subject to execution that he owned at the date of the judgment, or at any time afterwards) was sold on the execution, and a part of the debt thereby obtained. Held, that a suit could not, under those circumstances, be sustained on the assignment.</p> <p>Practice.—A demurrer to a declaration containing one good count should be overruled.</p>

<p>Pleading.—The holder of a bond for the payment of a specific sum with interest, may sue in debt for the principal alone, and need not notice in his declaration the contract for interest.</p>

<p>Attachment—Practice — If, in an attachment against a boat for materials, &c., the boat be released by the giving of a bond as prescribed by statute, the judgment for the plaintiff should be against the debtor personally.(a)</p> <p>Same.—But if no bond be given in such case, the judgment for the plaintiff should be for a sale of the boat.</p>

<p>Pmading.—A declaration in indebitatus assumpsit stated, that whereas the defendant on, &e., was indebted to the plaintiff in the sum of $181, for work and labour, &c.; and was also indebted to the plaintiff in the further sum of $3 81, for goods sold, &c.; the defendant afterwards, in consideration of the premises, promised to pay, &c.; yet, &c. Held, that this was one count only, and good on general demurrer.</p>

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

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

<p>Pleading.— Assumpsit against The President and Trustees of the Town of Connersville. The first count was on a promissory note alleged to have been given for the price of a fire-engine; the others were for the price of a fire-engine sold and delivered. Held, that a plea that the engine was wholly useless and of no value whatever, wherefore the consideration had iailed, was bad. Held, also, that the following plea, viz., The defendants say there is no body corporate and politic known and designated by the name and style of The President and Trustees of the Town of Connersville, was bad.</p> <p>Practice.—If in such action, the general issue and a plea in confession and avoidance be filed, the plaintiff can not have a verdict without proving, to the satisfaction of the jury, the matter alleged in the declaration.</p>

<p>Constitutional Law.—The statute of 1838, which authorizes the presiding judge of one circuit to preside in and hold a Court for one term, or for a single trial, in another circuit whose presiding judge is absent, is not unconstitutional.(a)</p> <p>CRIMINAL Law—Indictment.—The caption of an indictment from the Circuit Court, represented the grand jurors that found the bill to be “ good and lawful men.” Held, that this was a sufficient description of the qualifications of the jurors.</p> <p>Same.—The caption in such case showed, that at, &c., on, &e., the jurors, (naming them) appeared in Court, and being duly sworn and charged, &c. Held, that the omission of the words “then and there” before the words “ sworn and charged,” was not material.</p> <p>Same—Change of Venue.—An indictment, if the Tenue be changed, need not be recorded in the Court in which it was found.</p> <p>Same.—The record in this case showed, that the defendant was indicted in the Vigo Circuit Court for the murder of O. M.; that he pleaded there not guilty; that he procured a change of venue for his trial on that indictment to the Parke Circuit Court; that the clerk of the former Court handed over the '¿papers, and among them the indictment (which was spread on the record), to the clerk of the latter Court in which they were filed; that the defendant was placed on his trial in the Parke Circuit Court for the murder of O. J£., on the plea of not guilty theretofore entered in that behalf; that he made no objection to the indictment on which he was tried; and that the indictment, which was recorded in the last-named Court, and on which the defendant was tried, was the one which was transferred among the papers in the cause. Held, that these facts showed that the indictment found against the defendant in the Vigo Circuit Court, was the one on which he was tried.</p> <p>Challenge by State.—The State, on the trial of such cause, has three peremptory challenges; and- they may be made at any time between the appearance and swearing of the jury.</p> <p>"Examination oe "Witness.—The defendant on such trial examined a witness respecting his character, who referred in his testimony to rumors that had followed the defendant as to his character in a neighborhood where he had formerly lived. Held, that the counsel for the State might thereupon cross-examine the witness, respecting the defendant’s general character in his neighborhood as to his former conduct, (a)</p> <p>Impeachment oe Witness.—If a witness be impeached by proof of his having previously made statements inconsistent with his testimony, he may be supported by proving other statements made by him in accordance with it. Employing Counsel to Prosecute.—On the trial of an indictment for murder, the defendant was permitted to prove by the son of the deceased, who had been sworn for the State, that he, the witness, and the widow of the deceased, who had also been examined for the State, had employed counsel to assist the prosecuting attorney in the cause, but was not permitted to prove that the fee to be given for such assistance was on condition of a conviction. Held, that there was no error in this part of the case,</p> <p>Murder —Instructions.—The following instructions, there being evidence on the subject, were given in said cause to the jury. Tf homicide be committed in a sudden heat by the use of a deadly weapon, no provocation given by mere words will reduce the killing to manslaughter. The question should never be, was there anger merely? but, was there legal provocation to such anger? The use of a dangerous weapon under a provocation by words only, or under no provocation, is always evidence of malice aforethought. To constitute malice aforethought, it is only necessary that there be a formed design to kill; and such design may be conceived at the moment the fatal stroke is given, as well as a long time before. Malice aforethought means the intention to kill; and when such means are used as are likely to produce death, the legal presumption is that death was intended. Held, that these instructions were correct, (a)</p>

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

<p>Recognizance—Want op Attest.—A recognizance taken by a justice of the peace for the appearance before him, at a subsequent day, of a party accused of a crime, is not void for not showing that it was attested by the justice.</p> <p>Same.—Although a recognizance in such case be substantially defective a scire/acias suggesting the defect may, by statute, be issued upon it; and the omission of such suggestion (the recognizance being copied into the scire facias), can only be taken advantage of, if at all, by special demurrer.</p> <p>Same.—A recognizance in such case, purporting to be signed and sealed by the recognizor, and to have been acknowledged before the justice, is a sufficient foundation for a scire facias ; and if the recognizance was not entered into by the party sued on it, so as to be obligatory on him, the objection should be made by plea.</p> <p>Same.—When such recognizance is in a sum beyond a justice’s jurisdiction, and is forfeited, it should be certified to the Circuit Court; and a scire facias on it may, in such case, issue from that Court, (a)</p>

<p>County Treasures—Failure to Account.—A was appointed a county treasurer for the year 1838, and, during his term of office, he and his deputy received a part of the county revenue in county orders. In 1841, the hoard of county commissioners brought an action for money had and received against A for the amount so received, he having failed to account for the same to said hoard. Held, that the action would lie. (a)</p>

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

<p>PRACTICE—After a final decree had been rendered in a cause, the Court ordered (the defendant threatening to appeal, &c.), that the transcript he withheld from the defendant till he should make certain payments, &c. Held, that this order was erroneous.</p>

<p>Ejectment.—The lessor of the plaintiff claimed the premises in dispute, as a purchaser under an execution on a judgment in his favour against one 8. The defendant claimed the premises as a prior purchaser under an execution, issued before the lessor’s, on a judgment rendered against 8. at the same term with the other, but a few days later. The lessor’s execution *was issued and delivered to the sheriff a short time before the defendant’s purchase, of which the latter had notice. Held, that the plaintiff was entitled to recover.</p>

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

<p>Lease a Chattel.—A term for years in real estate may be sold on an execution from a justice’s Court.</p>

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

<p>Recognizance.—In a scire facias against A, B, and Q, on a recognizance conditioned for A!s appearance, &c., the plaintiff can not, on .a suggestion that the writ had not been served on A, proceed to judgment against B and 0 alone.</p> <p>Same.—A’s name was omitted in the body of said recognizance, but it appeared that he had signed and sealed it with the others, and that it was taken and approved by a judge. Held, that, notwithstanding the omission, the recognizance was valid, under the statute, as to all the defendants. Held, also, that no suggestion of the omission was necessary in the scire facias, as it set out the part of the recognizance objected to in hax verba.</p> <p>Same.—If the plaintiff undertake in such saire facias to give the •■eeogni-zance in hcec verba, he is bound to set out an exact copy.</p>

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

<p>Obstructing Process—Indictment.—An indictment for obstructing the execution of a search warrant must show the warrant to be legal; and it must therefore show, that the warrant appeared upon its face to be founded on a sufficient affidavit.</p>

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

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

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

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

<p>Deposition—Caption.—A deposition is not objectionable because the nama of the State where it is taken is not given in the caption, if the caption allege the deposition to have been taken agreeably to the annexed commission and notice, and the State be named in the dedimus and notice attached to the deposition.</p> <p>Same—Cebtificate—Nor is the certificate of the justice to such deposition objectionable for omitting the name of the State in which he is justice, if the certificate, by reference to the caption of the deposition, show the name of such State.</p>

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

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

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

<p>Pleading.—The declaration in this case contained two counts. The first stated that the defendant informed the plaintiff that he owned a certain steamboat running on the Mississippi river, and falsely and deceitfully represented that the boat was new and in good repair; that the plaintiff, confiding in said representations, purchased the boat (it not being present) for a certain sum, paid a part, &c.; that the defendant promised to deliver the boat in good repair to the plaintiff at, &c., as soon as possible, the property of the boat to remain in the defendant until delivery as aforesaid; that the plaintiff had been always ready to receive the boat, &c., but that the defendant, disregarding his promises, thereby deceived and defrauded the plaintiff, as the boat was not in good repair, and fraudulently refused to deliver the boat in the condition he promised, though often requested, &c. The second count was in assumpsit for money had and received. Held, that the first count was in assumpsit, and that there was therefore no misjoinder.</p> <p>Abbest oe Judgment.—An arrest of judgment is a final disposition of the cause, to which a writ of error lies.</p> <p>Same—Pbactice.—At the next term after judgment was arrested, a judgment was rendered against the plaintiff for costs. Held, that the latter judgment was no part of the record of the cause in which the arrest of judgment was-entered.</p>

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

<p>Executors and Administrators.—An omission in a scire facias oí proferí of the plaintiff’s authority, when he must sue as executor or administrator, is fatal, on special demurrer; hut when he can sustain the action in his own right, such omission is immaterial, though he describe himself as executor or administrator.(a)</p> <p>Same.—An executor can sue in his own right on a judgment obtained by him as executor for a debt due to his testator.</p> <p>Scire Facias.—A scire facias on a justice’s transcript need not show the date of the execution which had issued on the justice’s judgment, nor of its return of “ no property found.”</p> <p>Confession op Judgment.—A judgment confessed before a justice of the peace without the oath prescribed by statute, is good against the party confessing it. And if such party being a feme sole afterwards marry, the judgment is also good against her husband.</p> <p>Husband and Wipe.—A husband is a proper party to a scire facias on a justice’s transcript of a judgment rendered against his wife whilst sole.</p>

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

<p>PRINCIPAL and Agent.—An agent for attending to and managing a grocery and provision store, &c., is not, in consequence of such agency, authorized to draw or indorse notes in the name of his principal.</p>

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

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

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

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

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

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

<p>Bastardy—Non-resident Dependant.—If in a case of bastardy before a justice of the peace, the defendant be found guilty in his absence, and the proceedings be certified to the Circuit Court, a warrant should issue against the defendant directed to the'county in which the Courtis held, or in which the defendant may be found, if he reside in the State.</p> <p>Same.—If the defendant in such case do not reside in the State, an order of publication may be made on reasonable evidence of his non-residence.</p> <p>Same.—An order of publication in such case is not authorized by a return of “ not found ” to a warrant issued, by the mere direction of the attorney for the State, to a different county from that in which the Court is held.</p> <p>Same.—To justify a judgment of the Circuit Court in such case against a defendant who does not appear, there must be a verdict- against him.</p> <p>Same—Fobm of Judgment.—The judgment in such case against the defendant should be for a specific sum, with directions for its payment, when collected, in such parts and at such times, for the maintenance-of the child, as the Court shall think proper, and for costs.</p>

<p>Landlord and Tenant.—An action of assumpsit was commenced on the 28th of March, 1842, against W. J. for the use and occupation of land. Plea, that on the 1st of March, 1831, one J. J. entered into a written agreement with one D., the attorney in fact of the plaintiff, by which D., the attorney, leased the land described in the declaration to J. J., for eleven years from that time; and that in 1837, the defendant took a lease for the land from J. J., and held it under him till the end of his term, and then quitted the possession. Held, on general demurrer, that the plea wasbad.</p>

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

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

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

<p>Pleading.—The statement of demand in a suit by an administrator in a justice’s Court, was substantially as follows: The defendant, on, &c., had “swapped ” a certain bay horse to A, the intestate, and delivered the horse to him; the defendant afterwards took the horse into his possession without the plaintiffs consent, and converted him to his own use, &c.; to the plaintiff’s damage, &c. Held, that this was a sufficient statement in trover. Held, also, that it was too late, after a plea to the merits, to object to the statement of demand.</p> <p>Same.—If the defendant demur and plead to the statement of demand, the plea overrules the demurrer.(a)</p>

<p>Cohstable’s Bond.—A constable’s bond is not void merely because the penalty was not fixed, as the statute requires, by the board doing county business.(a)</p>

<p>Justice’s JURISDICTION.—Justices of the peace’have jurisdiction in replevin when the value of the property sued for does not exceed $50.00, though the damages claimed for the detention exceed $20.00.</p>

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

<p>RbplbviN Bail, Liability oe.—The taking of a delivery-bond of an execution-debtor, and proceeding on it to judgment and execution without obtaining satisfaction, are no bar to a scire facias against the replevin ba.il in the case.</p>

<p>Contract.—A verbally promised B, for a valuable consideration, to board him and his family for a certain time. Afterwards A, in a bond to 0, stipulated, at B’s suggestion, to board the latter and his family for the same time without charge. Held, that an action would lie on the parol contract.</p>

<p>Evidence.—Replevin for a horse. Plea, property in a third person. Held, that the declarations of such third person that he had sold the horse to the plaintiff, and had no claim to him, were not admissible evidence for the plaintiff, (a)</p> <p>Practice.—The refusal of an instruction to the jury (the record not showing that the instruction was applicable to the case), will be presumed to be correct.</p>

<p>Extortion—Evidence.—An execution for $110.43 is not admissible evidence to support an indictment for extortion, charging a constable with having collected more than was due on a>n execution for $04.00.</p> <p>Same.—An indictment in such case should set out the recital in the execution, showing the judgment on which the execution issued; and the names of both parties to the execution should be alleged.</p>

<p>Sdander— Evidence in Mitigation.—A feme sole brought an action » slander for words charging her with fornication and adultery. Pleas, na guilty, and that the words were true. Held, that the defendant might prove, in mitigation of damages, the plaintiff’s general character as to chastity to be bad. Held, also, that evidence in support of the plaintiff’s character was inadmissible, until'there had been an attempt, by evidence, to impeach it.(a)</p>

<p>False Impbisonment—Evidence in Mitigation.—Trespass against A and B for an assault and false imprisonment. A pleaded not guilty. He also pleaded as follows: That at the time of the trespass, &c., he was a justice of the peace, &c.; that a felony had been committed, &e., by certain persons making, forging, and counterfeiting, &c., (the particulars of the offense are here set out); that, on, &c., a reasonable suspicion and belief existed that the plaintiff was guilty of said felony, and there was reasonable ground for such suspicion and belief; that thereupon, afterwards, &c., the defendant being a justice of the peace as aforesaid, by reason of such felony having been committed as aforesaid, and of such reasonable suspicion and belief that the plaintiff was guilty of such felony, and of such reasonable ground of suspicion and belief that the plaintiff was so guilty,-—commanded said B to arrest the plaintiff, and take him before some justice of the peace, &c.; that B, in pursuance of said command, gently laid his hands on the plaintiff, and took him before C, a justice of the peace, &c., to be dealt with, &e.; which is the same trespass, &c. A also pleaded a second special plea which was similar to the first, except that it did not allege that he was a justice of the peace. Held, on general demurrer, that these special pleas of A were bad for this reason, if no other, that they omit to set out the ground upon which the suspicion and belief of the plaintiff’s guilt were founded.</p> <p>B pleaded not guilty. He also pleaded as follows: That at the time of the trespass, &e., he was a constable, &c.; that a felony had been committed, &c., by certain persons making, forging, and counterfeiting, &c., (the particulars of the offense are here set out); that afterwards, &c., a reasonable suspicion and belief existed that the plaintiff was guilty of said felony, and there was reasonable ground for such suspicion and belief; that one A and, others charged the plaintiff with being guilty of said felony, and informed this defendant, he being a constable, &c., that the plaintiff was guilty; that afterwards, &e., this defendant, constable as aforesaid, by reason of said felony, having been committed as aforesaid, and of such reasonable suspicion and belief that the plaintiff was guilty thereof, and of reasonable-ground for such suspicion and belief, and of said charge *and information of A and others, for the purpose of carrying the plaintiff before some justice of the peace to be dealt with, &c., gently laid his hands un the plaintiff and took him before one <7, a justice of the peace, &c., to be dealt with, <&c.; which is the same trespass, &c. B also pleaded a second special plea which was similar to his first, except that it did not allege that he was a constable. Held, on general demurrei', that these special pleas of B were bad for not showing that his informant stated the facts by which he knew or believed the plaintiff to be guilty, and for not setting out those-facts.</p> <p>Held, also, that a warrant, illegal on its face, which had been issued by the defendant A as. justice of the peace, and under which the defendant B had made the arrest, &c., and which had been referred to by the plaintiff’s witness, was admissible evidence for the defendants in mitigation of damages.</p> <p>Held, also, that the defendants might prove, in mitigation of damages, that at and shortly before the time of the arrest, &c., there was in the plaintiffs neighbourhood an association of persons engaged in making and passing counterfeit money, &c., and that the plaintiff was generally reputed and believed there to have been one of that association; but that the facts that the plaintiff was one of that association, and had been engaged in passing counterfeit money knowingly and with intent to defraud the public, should be specially pleaded.</p>

<p>Payment.—The payment of a debt in treasury notes of the State at par, which had recently depreciated in value, is good, if the payer did not know of the depreciation, or if both parties knew, or had the same means of knowing, the value of the notes, and the payment was made in good faith.</p>

<p>Gertebted Copt op Letters Testamentary.—Letters testamentary in the form prescribed by statute, which, when granted, were entered of record in the Probate Court, and were afterwards, when delivered to the executor, certified by the clerk to be true copies of the record, were held to be valid as being the original letters.</p>

<p>Vendos and Purchaser— Rescission oe Contracts.—The holder of a bond conditioned for the conveyance to him of certain land when the price, payable by installments, shall be paid, can not rescind the contract on account of the obligor’s not being ready to convey the land at the time specified by the contract, if he has .since accepted a conveyance, (a)</p> <p>Practice.—If no objection be made to an instruction to the jury when it is given, it can not be objected to on error.</p>

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

<p>Ymendment or Peeadings—Continuance.—If in a suit on a sealed note, the declaration be so amended as to describe a different note from that previously described, the defendant is entitled to a continuance.</p> <p>Iamb.—The defendant’s objection to the refusal of a continuance is not •v."ived by a subsequent withdrawal of his plea.</p>

<p>Imprisonment for Debt.—A defendant in custody on a capias ad satisfacien-dum may be discharged without prejudice, under the act of 1841, by the attorney at law for the plaintiff.</p> <p>*'Practice.—If a rejoinder be double, the plaintiff may demur to it for duplicity; hut if he surrejoin, he must answer both parts of the rejoinder.</p>

<p>ERROR to the La Grange, Circuit Court. The indictment in this case was found at the April term, 1841.</p>

<p>Evidence—Jtjstlces’ Transcript.—Scire facias to have execution against real estate on a justice’s transcript. Held, that the execution issued by the justice and its return, if denied, must be proved by producing the original execution and return, or copies certified by the justice, or sworn copies.(a)</p>

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

<p>Coutinuance, Affidavit foe.—The defendant’s affidavit for a continuance stated, that he had been unable to prepare for trial in consequence of severe bodily affliction, under which he had laboured ever since and long before the process was served; that he believed he had .a meritorious defense and could be ready for trial at the next term; and that the affidavit was not . made for delay. Held, that the affidavit was insuffieient.(a)</p>

<p>Liquor. Seller’s Bond.—The declaration in debt on a bond stated that the condition, after reciting that the defendant'had been licensed to retail spirituous liquors, <Ssc., was, that should the defendant not permit any gambling, rioting, or disorderly conduct in his house, but conform to the laws of the State restraining gambling, rioting, and disorderly'conduct in his house, and should he not suffer any unlawful assemblies, or sell or retail any spirituous liquors on the Sabbath day except to travelers, then the bond to be void. Breaches assigned: 1, That the defendant did permit disorderly conduct in his house in this, viz., that, on, &c., he permitted A, B, and <7, to conduct themselves in a disorderly manner in his house, by then and there fighting and quarreling together, &c.; 2, That the defendant suffered unlawful assemblies in and about his house during the continuance of his license, &c.; 3, That the defendant, during the continuance of his license as aforesaid, sold and retailed spirituous liquors on the Sabbath to divers persons who were not travelers, viz., one pint of whisky to A, one pint of brandy to B, and one pint of whisky to G, &c.; 4, That the defendant permitted gambling, rioting, and disorderly conduct in his house during the time for which he was licensed as aforesaid, and did not conform to the laws restraining gambling and disorderly conduct about taverns and public houses, <&e.</p> <p>Held, that the bond was valid. IIeld, also, that though the bond was described in the declaration as payable to B, treasurer of H. county, and appeared on oyer to be payable to B, treasurer of II. county, or his successors in office, the variance was immaterial. Held, also, on general demurrer, that the first breach was good and the second and fourth bad. Held, also, that die third breach was bad, on special demurrer, for duplicity.</p>

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

<p>Justice’s Judgment—Transcript—Pleading.—In scire Jadas on a justice’s transcript to have execution against real estate, a plea that the defendant had not at the time of filing the plea, nor at any time after the writ issued, any such estate, is bad on general demurrer.</p> <p>Same—Alteration.—A plea to such suit, that the justice’s judgment had been materially altered after the scire Jadas issued, without showing what the alteration was, is insufficient.</p> <p>Same.—To pleas in such suit, denying the existence of the justice's judgment when the scire Jacios or the execution mentioned in it issued, the plaintiff replied that the justice had, by leave of the Court, amended his transcript after the same was filed, by inserting after the verdict a judgment, &c. Held, on general demurrer, that the replication was bad.</p> <p>Practice.—A judgment for the plaintiff in the sdre Jacios is erroneous, if there be a plea .unanswered denying the existence of the justice’s judgment Certificate of Justice.—An allegation in the scire Jadas, that the justice who certified the transcript was an acting justice of the peace, and that the transcript was filed in the W. Circuit Court, is sufficient to raise a presump-. tion that he was a justice of W. county.</p>

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

<p>Set-Off.—Assumpsit commenced before a justice of the peace by Rogers against While. Plea, payment and set-off. The matter of set-off was a' joint and several promissory note for $51.00, signed Simmers and Rogers, payable to one Richards, and assigned by him to the defendant before the commencement of the suit. Held, that the set-off was admissible. Held, also, that the plaintiff’s execution of tire note could be denied only under oath.</p>

<p>PoEAKGsre—Variance.—In debt on a bond, the declaration alleged the condition to be for the payment of a certain sum of money on a certain day. The condition, as shown on oyer, was for the payment of the money out of the profits of certain real estate. Held, that the variance was fatal.</p>

<p>Statute Construed.—A penalty is inflicted, by an act of 1840, for issuing any small bill for tbe purpose of passing the same as a circulating medium, Ac. , .</p> <p>Prividese oe Witness.—A witness is not bound to answer any question,'if . his answer will expose him to a.ny criminal punishment or penal liability.</p> <p>Evidence—Admissions.—The admissions of the assignor of a note, made after the assignment, are not receivable in evidence to prejudice his assignee.</p> <p>jNew Triad.— It is no ground, for a new trial, that a witness for the party asking it, who had been excused from testifying on the trial which had taken place because his evidence might subject him to a penalty, has promised to give evidence in the cause if a new trial should be granted.</p>

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

<p>Assignee op Judgment.—The assignor of a judgment has no control of it, nor of an execution on it taken out by the assignee; and if the sheriff, with notice of the*assignment, fail to discharge his duty'relative to such execution, by order of the assignor, he is liable to a, suit therefor for the .use of the assignee.</p> <p>Liability op Shebifp.—A sheriff who seizes property by virtue of a fieri facias, and does not sell the same within a reasonable time, is liable for his non-feasance to the party injured, unless he have a legal excuse.(a)</p>

<p>EEROE to the Bush Circuit Court.</p>

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

<p>lloRTGASB—Mistake.—A mortgaged certain lands to B to secure him against loss as indorser of his (A’s) note. A tract of land, intended by the parties to be inserted in the mortgage, was omitted by mistake. A.fter-wards, certain creditors of A obtained judgments against him. B paid the indorsed note which was for a larger amount than the mortgaged lands and the omitted tract were worth; and A was insolvent. Held, that a Court of chancery might correct the mistake in the mortgage, and free the omitted tract from the lien of the judgments.(a)</p>

<p>Usury—Evidence.—In support of an indictment for usury charging the loan to have been for three months, evidence of a loan for three months and one month in addition thereto if the borrower wished it, is inadmissible cn the ground of variance.</p>

<p>Vbndob and Purchaser.—A note payable one day after date was given for tbe price of certain town-lots, the title for which was to be made by the plaintiff to the defendant on payment of the purchase-money, and a demand of the deed. Held, that it was no defense to a suit on the note, that the deed had not been made or offered before the suit was commenced. Held, also, that it was no defense to such suit that, at the time of the sale, the plaintiff represented to the “defendant that there was an alley on one side of the lots, and that the plaintiff had since conveyed to a third person the land adjoining the lots .and embracing the alley, if the plaintiff’s plat of the lots, on which the alley was designated, was recorded before the execution of the conveyance. Held, also, that had such conveyance been material in the cause, the record of it would have been admissible evidence for the defendant, without accounting for the absence of the original.(a)</p>

<p>Impeisonment for Debt.— If in a suit on a bond for the prison-limits, the alleged breach be an escape before the passage of the act of 1342 abolishing imprisonment for debt, a plea relying on that act is bad.</p> <p>Same.—The declaration in such suit described tbe judgment under which the imprisonment took place as of a certain date and amount, and averred that the. judgment was erroneously recited in the condition of the bond as of a different date and amount (setting them out.) Held, that the declaration was bad on general demurrer. • Held, also, that such mistake in the recital in the condition of the bond might be corrected by a Court of chancery. Held, also, that the declaration in a suit on the bond might describe the condition without noticing the mistake in the recital, and the defendant would be estopped from showing the judgment to be different from that recited.</p>

<p>Jubisdiction op Justices—Distress por -Kent.—Tlie jurisdiction of a justice of the peace, under the act regulating distress for rent, is not limited to any amount.</p> <p>Same.—The justice may take bail for the stay of execution on a judgment rendered for any amount against the tenant in such case, and issue a scire facias against the bail as in other cases.</p> <p>Appead-Bond—Practice.—An appeal-bond taken in the case of an appeal to the Circuit Court from a justice’s judgment, and not objected to in the Circuit Court, can not be objected to in the Supreme Court.</p> <p>Same.—No objection to such bond can authorize the dismissal of the action by the Circuit Court.</p>

<p>Scire Facias—Amendment—Continuance.—A sei’re facias against A to have execution against real estate on a justice’s transcript of a judgment against him and B, without alleging such previous proceedings as authorized the suit against A alone, is bad in substance. And an amendment of the scire facias, by alleging such previous proceedings, entitles the defendant to a continuance.</p> <p>Same—Variance.—The said scire facias averred the judgment mentioned in the justice’s transcript to be for $69.15, with costs. The transcript offered in evidence was of a judgment for $00.44, with the interest that had accrued, and costs. Held, that there was no substantial variance, it appearing on calculation that the amount due by the judgment mentioned in the transcript was correctly stated in the scire facias.</p>

<p>Pleading.—A plea, if ambiguous, must be taken most strongly against the pleader.</p> <p>Vendor and Purchaser—Tender oe Deed.—If a person sell real estate to be afterwards paid for, and contract to make a title to the purchaser on payment of all the purchase-money, it is not necessary to a recovery in a suit on a note for part of the purchase-money (the residue having been paid), that a deed be executed or unconditionally tendered before the commencement of the suit, (a)</p> <p>Same.—If a deed in such case be offered when the note falls due, or within a reasonable time afterwards, on payment of the note being made at the time of delivering the deed, the suit may be brought.</p>

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

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

<p>Constable—False Return.—In a scire facias against a constable for a false return of an execution—the return being that the execution was returned by order of the plaintiff—the return is no evidence that the plaintiff gave such order.</p>

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

<p>Escape—Evidence—Oeeicer’s Retitkn.—In debt on a sheriff's bond the breach assigned was an escape on execution. Held, that it was too late, after the issue had been joined, the plaintiff’s testimony closed, and a witness examined- by the defendants, to permit the sheriff to amend his return to the execution. Held, also, that evidence for the defendants of the execution-debtor’s insolvency at the time of his arrest and escape, was inadmissible. Held, also, that the defendants could not introduce parol evidence to contradict the sheriff’s return. Held, also, that the measure of damages was the amount of the execution and costs.</p>

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

<p>Replevin—Ple vding.—In replevin in the detinuit, which is now the usual form, the declaration need not state the value of the goods.</p>

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

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

<p>Disorderly House — Nuisance.—A public and disorderly liquor and store nouse in a town, in and about which dissolute persons are permitted, for lucre, to remain at night and in the day time, drinking, tippling, carousing, swearing, hallooing, &e., to the damage, disturbance, &c., is a public nuisance, and the keeper of it is indictable.(a)</p>

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

<p>Practice.—If after a demurrer for multifariousness to a bill in chancery is overruled, the defendant answer the bill, the objection to it for niultifa-riousness is waived.</p> <p>Dower in Mortgaged Premises.—If a widow, who in her husband’s lifetime had joined with him in the execution of a mortgage of real estate, have not redeemed the mortgage, she has no better claim to dower in the premises than she would have had if the deed had been absolute.</p> <p>Acknowledgment on Feme Covert.—If the certificate of the proper officer on a conveyance of real estate, of the acknowledgment of a feme covert, state that she acknowledged she had voluntarily executed the conveyance, it is sufficient under such statutes on the subject as that of 1824.</p> <p>Certificate.—Such certificate, however, under the statute in force in 1818, must be under the hand and seal of the officer, (a)</p>

<p>New Trial.—The granting or refusing of a new trial may be assigned for error.</p> <p>Partnership, Evidence oe.—The defendant’s acknowledgment of the partnership of the plaintiffs, is sufficient evidence of such partnership.</p> <p>Same.—In á suit against partners in a distillery and in the purchase of corn, the plaintiff may give in evidence the receipt of one of the defendants, acknowledging the delivery of a certain quantity of corn to him by the plaintiff.</p> <p>Same—Firm Debt.—If goods be purchased by a partner for the use of the firm, the seller may sue the partners for the price, though he did not know at the time of the sale, q,f the existence of the firm.</p>

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

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

<p>Presumption as to Citizenship.—The law presumes all persons who reside here to be citizens of the United Stales until the contrary appears.</p> <p>Damages—Evidence.—A person claimed damages of the State, under the statute concerning internal improvements, because the Wabash and Erie canal was cut through his land, separating that part of it on which his dwelling house stood from the rest of the tract, and causing a part of his . land to be overflowed. Held, that the State might prove, to lessen the damages, how much it would cost to build a bridge on the land over the canal, and what would be the expense of draining off the water.</p>

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

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

<p>Bastabdt—Effect of Discharge by Justice.—A person charged before a justice of the peace with being the father of an illegitimate child, was> on examination of the mother, discharged by the justice. Held, that the discharge was no bar to a subsequent prosecution for the same offense.</p>

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

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

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

<p>Malicious Prosecution.—If in an action for maliciously indicting the plaintiff, &e., it appear that a nolle prosequi to the indictment had been entered, and a judgment thereupon rendered that the defendant “ go hence, thereof acquit, without day,” the acquittal is sufficient to warrant the suit, (a)</p> <p>Change of Venue.—When a change of venue is awarded in open Court, an entry on the record directing the change, and ordering the clerk to transmit the papers, is a substantial compliance with the statute;</p>

<p>The second indorser of an accommodation note, is not liable for contribution to the first indorse who has paid the note.</p>

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

<p>Paeading.—An account consisting of various items was filed as a cause of action against A before a justice of the peace. Plea in abatement, that the ' promises, if any, were made jointly with B. Held, that pi-oof that one of the articles was on the joint account of the defendant and B sustained the plea, (a)</p>

<p>Mechanics’ Lien.—A person can not avail himself of the benefit of the statute giving mechanics a lien on buildings, who has not commenced his suit within a year, &c., and filed in the recorder’s office due notice, &c., aa the statute requires.</p> <p>Work and Labor.—Where a person seeks to recover, as on a quantum meruit, the value of work done, materials furnished, &c., his remedy, if he have any, is not in chancery but at law.</p>

<p>JURISDICTION op Justice.—In a suit by the State, on the relation, &c., on a justice’s bond, the breach assigned was, that the justice had rendered judgment in an action of debt in favour of .the relator against one JR. for $95.87 and costs; that the justice had improperly taken replevin-bail, &c, and neglected to issue execution, &c. Held, that the declaration sufficiently showed that the justice had jurisdiction of the suit against iJ., it appearing that the action was debt, and the amount recovered less than $100.</p>

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

<p>Faxlitbe to Return Writ—Excuse.—In debt on a sheriff’s bond; the breach assigned was the sheriff’s failure to return a certain fieri facias. Plea, thát on the return day of the execution, and for six days before, the sheriff was sick, and thereby rendered incapable of returning the writ, or of attending to the duties of his office, and so continued until his death. Held, that the plea was good.</p>

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

<p>Pleading.—A plea of nil debet to an action of debt on a bond is bad on general demurrer.</p> <p>Same.—In a suit on a justice’s bond for neglecting to issue an execution, a plea that at the time of the judgment and ever since the execution-defendant was insolvent, is insufficient.</p> <p>Insolvency oe Execution-Defendant.—*But in such suit, the execution-defendant’s insolvency at the time of the judgment and afterwards may he proved in mitigation of damages.</p>

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

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

<p>Chaxge of V'exuf.—If an indictment be found in the Circuit Court of one county and be tried in the Circuit Court of another—the record not showing a change of venue, nor that any objection was made to the jurisdiction of the latter Court—a change of venue will be presumed.</p> <p>Criminad Law—Verdict.—A verdict of guilty of petit larceny, disfranchising the defendant, from holding any “office of trust” is valid, and authorizes a judgment disfranchising him from holding any “office of trust or profit.”</p>

<p>Conveyance by Attoeney.—A vendee of real estate is not obliged to receive a conveyance executed by an attorney in fact, unless where there is some very strong reason for it.</p> <p>Acknowledgment op Feme Covert.—A feme covert can not acknowledge a conveyance of real estate by an attorney in fact.(a)</p>

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

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

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

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

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

<p>Pbiyii/ege PROM Arrest.—A capias ad respondendum requiring bail was served, and bail taken, on the 2d of August, 1841, the day of the general election. Held, that the defendant ought to be discharged from the custody of his bail, and the bail from his recognizance; but that there was no ground for quashing the writ.</p>

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

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

<p>Before the time expired within which an award was to he made, according to the condition of an arbitration bond, the parties, by an agreement under seal written on the bond, extended the time for making the award. Held, that debt would lie on the arbitration bond for nonperformance of an award made within the enlarged time.</p>

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

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

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

<p>Beplevin Bail—Eights of.—After an execution against the goods, &c., of A and his replevin bail B was delivered to the sheriff, G fraudulently converted certain goods of A to his own use, the latter having no other property. The execution was then levied on the property of B, who paid a part of the judgment, and sued 0 for said tort. Held, that the action would not lie, the plaintiff having no legal interest in the goods when the injury was commitled.(a)</p>

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

<p>PRACTICE.—In debt by an assignee against the maker oí a promissory note, the general issue, sworn to in general terms, does not require the ■ plaintiff to prove the execution of the assignment.</p> <p>Pleading.—If a plaintiff suffer a nonsuit in consequence of an erroneous exclusion of his evidence, he is not entitled to a writ of error.</p>

<p>MERCANTILE Paper.—Practice.—In a suit against several persons as makers, and others as indorsers, of a promissory note negotiable and payable at a bank within the State, a judgment by default can not be rendered against some of the defendants only, unless there be a return of “ not found ” as to the others.</p> <p>Same—Return of Sheriff.—In assumpsit against A, B, (7, and B, the sheriff returned the writ served as to A and B, and “ not found ” as to O and B, but stated in his return that he did not go to the house of B by order of the plaintiff’s attorney. Held, that there was no legal return of “ not found ” as to B.</p> <p>Practice.—If in a suit against the makers and indorsers of a promissory note, under the statute of 1839, the defendants appear and plead to the action, the plaintiff must recover, if at all, against all the defendants.</p> <p>Withdbawal of Aepeabanoe.—If a defendant appear and plead to an action, and afterwards withdraw his plea and appearance, the case ' stands as if there had been no appearance and plea.</p>

<p>Tkespass, Local.—The action of trespass quare clausum fregit is local, and can be brought only in the county in which the trespass was committed.(a)</p> <p>Same.—The circumstance that such trespass was committed in one county by persons resident in another, does not authorize the capias ad respond-endum,, issued in the former county, to be directed to the sheriff of the latter.</p>