Volume 6 — Indiana Reports

<p>APPEAL from an order of the judge of the Court of Common Pleas of Clark county, made in vacation.</p>

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

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

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

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

<p>The R. S. 1852 did not take effect until in May, 1853.</p> <p>The provisions of article 3, of chapter 40, of the R. S. 1843, relate only to civil suits.</p> <p>Courts will give a strict construction to statutes which are against common right.</p> <p>A statute requiring an attorney at law or other person to render gratuitous services in civil cases, can not be extended by construction so as to include criminal cases.</p> <p>Section 14 and the 4th clause of section 16 of chapter 59, B. S. 1843, do not continue in force section 25, p. 435, B. S. 1838.</p> <p>The provision in the B. S. 1843 on the same subject of section 25, p. 435, B. S. 1838, being an independent one and containing no words of continuance in relation to the latter section, repealed it.</p> <p>A statute requiring gratuitous services from the legal profession, or other particular class of citizens, in effect imposes a tax upon them, and is in violation of the requirement in the constitution which provides for a uniform and equal rate of assessment and taxation upon all citizens.</p> <p>A county is liable, ex necessitate, for the value of the services of an attorney appointed by the Circuit Court to defend a poor person on a criminal accusation; but the Circuit Court can not fix the measure of compensation.</p>

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

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

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

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

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

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

<p>Ignorance of the law will not excuse a man from punishment on a criminal accusation.</p>

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

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

_ This was a petition in the Probate Court of Decatur county, filed by Holmes and wife against Bradley Adkins, and the heirs at law of Martin Adkins, deceased, some of whom were minors. The suit was for dower on behalf of the female plaintiff, who was the lawful wife of said Martin at the time of his death, and had since married the other plaintiff. The petition also claimed damages for the withholding of the dower.

<p>In a suit commenced before a justice of the peace, the 'want of jurisdiction can.be shown either before the justice-or on appeal to the Circuit Court.</p> <p>The refusal of the only justice of the peace of the proper township to entertain a suit, where he was legally competent and disinterested, did not, by the E. S. 1843, authorize the plaintiff to bring the suit in another township.</p> <p>The remedy of the plaintiff, on such refusal, was by suit against the justice.</p>

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

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

<p>A justice of the peace, under the K. S. 1843, could render a valid judgment against a defendant sued out of his proper township, if such defendant, having been served with process, did not appear and plead to the jurisdiction.</p> <p>i a suit on the bond of a justice of the peace for his refusal to account for money collected, it appeared that he had officially received a note for collection from the relators, had collected it, and refused to account for the proceeds. Held, that it must be presumed, prima facie, against him and his sureties, that he had the right to give the receipt officially, and that his act was legal.</p>

<p>The plaintiff, inf a suit for the backing of water by a dam uponfhhj machinery,; &c., was allowed to read extracts from “Evans’ Millwright Guide,” in his closing argument to the jury, although the defendant objected. The Court instructed the jury that extracts read from a scientific work were not even prima facie of authority, but like the argument of counsel, or other thing adduced to illustrate, they might be satisfactory to the jury or they might not. Held, that there was no error.</p> <p>In a cause where several issues of fact were raised by the pleadings, the Court, in its charge to the jury, stated that there were but two questions, specifying them, for their consideration, the other facts not being controverted. The evidence not having been set out in the record, held, that the presumption was that the parties had narrowed the issue to the questions stated by the Court.</p> <p>Where an individual constructs a dam so as to flow back water upon the land of another, it is a presumption of law that the act is a damage, and no special damage need be proved.</p> <p>This presumption applies, in this state, as well to mill-dams as others.</p> <p>An obstruction caused by the back flowage from a dam, need not be continuous to authorize an action.</p> <p>Case by A. against B. for erecting a dam on Blue liver below the jilaintiff’s mills, whereby the water .was backed on his machinery. Plea, the general issue. On the trial (in March, 1850,) C., who, prior to the commencement of the suit, had no interest in the mills, but had since acquired an interest in the profits by way of compensation for carrying on the business, was offered as a witness. Held, that he was incompetent.</p>

Joseph Probate Court. This was a petition filed by the appellee in the St. Joseph Probate Court for the allowance of a claim against the estate of John Gilmore, deceased, of whose will the appellants are executors. There was an answer in denial of the validity of the claim, trial by jury, and verdict and judgment for the claimant.

<p>In replevin, under tlie B. S. 1843, if the goods specified in the writ were not found or replevied, or were not delivered to the plaintiff, by reason of his failing to give bond, &e., and their value as alleged, and as found by the verdict, was less than 20 dollars, the cause was not within the appellate jurisdiction of the Supreme Court.</p>

<p>A power of attorney purported to authorize a confession of judgment in the Circuit Court, in favor of the payee, “for the amount of the principal and interest that” might “he due on four certain promissory notes given by” the debtor. A judgment was taken, by confession of the attorney, for a sum which, the record stated, was the full amount of the principal and interest due, at the taking of judgment, on the four notes specified in the warrant; but the notes were not shown, by any extrinsic testimony, to be the same notes therein referred to. The defendant having taken an appeal, the clerk certified in the transcript that four notes, which he copied therein, were placed on file in his office when the warrant was filed, and that upon them the judgment was rendered.</p> <p>Hdd, that the warrant did not sufficiently identify the notes to authorize the judgment.</p> <p>Hdd, also, that the certificate of the clerk, in relation to the filing of the notes and that the judgment was rendered thereon, was no part of the record.</p> <p>Hdd, also, that the defect in the proceedings was not cured by s. 580, p. 162, 2 R. S. 1852.</p> <p>If the defendant in a Court of Error rely upon a release of errors, he must plead the release specially.</p>

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

<p>Scire facias, in the Circuit Court, to obtain an execution against real estate, upon the transcript of a judgment of a justice of the peace. Demurrer to the scire facias sustained, and judgment on the demurrer. Afterwards, in vacation, the plaintiff amended and re-filed his scire facias, and, at the following term, the Court awarded execution for want of an answer. No notice was given to the defendant, nor did he appear after the scire facias was amended. Held, that the awarding of the execution was error.</p>

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

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

<p>A party after moving in arrest of judgment can not move for a new trial.</p>

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

<p>An infant can not appoint an agent or attorney.</p> <p>An order of the Probate Court directing the payment of money of an infant distributee to a third person, as the agent of the infant, is erroneous.</p> <p>It was error in the Probate Court, under the B. S. 1843, to order a distribution of moneys belonging to an intestate’s estate, before final settlement, without directing the administrator to require a bond, with sufficient surety, for the return of the moneys, should the same be necessary for the payment of debts, &c., or to equalize the shares among those entitled thereto.</p> <p>Where error is prosecuted against a party as an administrator, the plea in nullo est erratum admits his representative character.</p>

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

<p>Where a father and his adult children live together as members of a common family, there is no implied undertaking on the part of either to pay for service rendered, or board, &e., furnished; but the undertaking may ansc from an express contract, or may be inferred from circumstances.</p> <p>The moral obligation of a father to support an adult idiot son is greater than that of a brother, where the parties are equally able.</p>

<p>The description in a mortgage is sufficient whenever the land intended to be mortgaged can be ascertained by it.</p> <p>A defendant in chancery can not object, on error, that other parties were improperly made co-defendants, when he has not been injured thereby.</p> <p>Where persons are improperly made defendants to a bill, and no decree is taken against them, the complainant should be taxed with the costs occasioned by their being parties.</p> <p>In a bill by administrators to foreclose a mortgage given to the intestate, they described themselves “as administrators of the goods,” &c., “which were of” the intestate, giving his name and last residence. The bill also stated that on, &c., he died intestate, and that the complainants were duly appointed, &c. Held, that it sufficiently appeared that the complainants were administrators.</p> <p>A husband may enter an appearance for his wife by attorney to an action.</p> <p>The proper mode of showing that exhibits have been not proven, is by bill of exceptions.</p>

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

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

<p>The Supreme Court will more readily control tlie discretion of the Court below in refusing a new trial than in granting it, because the refusal operates as a final adjudication between the parties.</p> <p>The granting of a new trial by the Circuit Court is a matter within its sound discretion, and will not be disturbed by the Supreme Court unless a flagrant case of injustice is made to appear.</p>

<p>Exhibits, under the chancery practice, might be proved by parol.</p> <p>Evidence offered in proof of an exhibit may be placed upon record by a bill of exceptions.</p> <p>Where proof of an exhibit was necessary to support a decree, it will be presumed to have been given, unless the contrary appear by bill of exceptions or be otherwise shown by the record.</p>

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

<p>The intention of section 20, p. 19, 2 R. S. 1852, was, that appeals from the Courts of Common Pleas to the Circuit Courts should stand for trial, in the latter Courts, on their merits.</p> <p>Section 336, p. 114, 2 R. S. 1852, 'authorizes the Court to direct the jury to find a special verdict, without being requested by either party.</p> <p>Earnest money paid may be recovered back upon a failure of the party who received it to comply with his part of the contract.</p> <p>Growing com is as capable of delivery as any other article of commerce.</p> <p>An instruction may properly be refused which would tend to mislead the jury.</p> <p>Instructions must be objected to before the return of the verdict, or all errors therein will be considered as waived.</p> <p>A party who has neglected to move for a new trial or in arrest of judgment, can not afterward object to the form of the verdict.</p>

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

<p>An oral promise by A. to B. to indemnify B. against loss, if he will become replevin bail for O., is void under the statute of frauds.</p> <p>If A. places in the hands of B. money to be paid to 0., to indemnify him for having, as replevin bail, paid a judgment against A., and B. promises C. to pay O. the money, O. can sustain an action therefor.</p> <p>In a suit originating before a justice of the peace, no great strictness as to the form of action and pleading is generally required.</p>

<p>A sale of land might be made without appraisement, under the act of 1841, on an execution issued under the direction of the Circuit Court, upon scire facias on a justice’s transcript to bind real estate.</p> <p>In ejectment by the execution-defendant against the purchaser to recover land sold upon execution, the latter need only show, prima facie, a judgment against the former, an execution and a sale thereon, and a sheriff’s deed.</p> <p>An appraisement of land sold upon execution will be presumed to have been made, if the law required an appraisement, until the contrary appears.</p>

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

<p>The sixteenth section in the several congressional townships in this state was granted by congress to the inhabitants of such townships respectively, for the use of schools therein and not elsewhere; and the grant was accepted by the state on the terms in which it was made.</p> <p>By the sale of the sixteenth section in the several congressional townships in this state, under the act of congress of 1828, the proceeds became trust funds, to be applied for the use of schools in such townships respectively, and not elsewhere.</p> <p>The act of congress of 1828 authorizing the sale of the sixteenth section in 'the several congressional townships in this state, and the several acts of congress reserving, and also those granting, the sixteenth section in the several townships in this state and other states for the use of schools, being in relation to the same subject-matter, are to be taken in pari materia and construed as one act, in ascertaining the purpose of the grant of the sixteenth section of the several townships in this state.</p> <p>The circumstance that when the sixteenth section in the several townships in this state was granted by congress to the inhabitants for the use of schools' therein, there were, in some of the townships, no inhabitants, did not affect the validity of the grant.</p> <p>A repeal by the legislature of the act creating congressional townships, could not affect the validity of the grant by congress of the sixteenth section ini those townships to the inhabitants for the use of schools therein, nor give the state any better right than it otherwise would have had to divert the funds derived from the sale of such sections. The grant in question was a contract executed and ineapahle of revocation by the legislature.</p> <p>Semble, that so far as the corporate capacity of the several congressional townships relates to the funds derived from the sale of the sixteenth section in such townships, they are private corporations created to meet the terms of the grant by congress of said sections, and their powers can not bo repealed by the legislature.</p> <p>The school law of 1852, so far as it diverts the proceeds of the sale of the sixteenth section in the several congressional townships from the use of schools in such townships respectively to the use of the school system of the state at large, is in contravention of section 7 of article 8 of the constitution.</p>

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

<p>To a scire facias to revive a judgment after the defendant’s death, and to obtain execution thereon against his real estate, the administrator and heirs of the defendant, if he died intestate, are proper parties.</p> <p>The judgment for the plaintiff upon the scire facias should be, to make the money first of the assets in the hands of the administrator, and failing in this, then of the lands of the heirs.</p> <p>But the failure to render the judgment in this form is a mere informality, which, by the R. S. 1852, is to be regarded as amended in the Supreme Court.</p> <p>A scire facias to revive a judgment was substantially as follows: The state of Indiana, to the sheriff of Vigo county, greeting: Whereas A. B., for the use of C. D., on, &c., in the Vigo Circuit Court, recovered a judgment against E, F. in a certain action of debt, to-wit, &c., (mentioning the amount of the judgment); and whereas, afterwards, and before execution thereupon had, to-wit, on, &e., said E. F. died intestate, and letters of administration were granted in due form to G. 3.; and whereas said E. F. left as his heirs and terre-tenants I. J. (and others, naming them); and whereas, said judgment remains unsatisfied, as we are informed by said C. D.; we therefore command you to make known to said G. B., as such administrator, and the said I. J. (and the other heirs, naming them,) and the terre-tenants, if there be any, that they appear before the judges of said Vigo Circuit Court, on, &c., to show cause, if any they have, why the said A. B., for the use, &c., ought not to have execution of the goods, &c., of said E. F., in the hands of said G. 3. to be administered, and of the lands, &e., of which said heirs are seized as the heirs of said E. F., deceased, for his debt and damages and costs aforesaid, and further to do, &c. The scire facias not having been demurred to, held that it was sufficient on error.</p>

<p>The conveyance by a testator of all the land owned by him at the time of making his will, operates to revoke it, and those after acquired do not pass by the will.</p> <p>Section 4, p. 485, R. S. 1843, applies only to cases where the will purports to devise all the property equally, or in proportions, to all the devisees named ' in it, and not to cases where particular pieces of property are devised to particular devisees with a residuary clause.</p>

<p>Nil debet is bad in debt on a bond.</p> <p>The board of commissioners, treasurer, auditor, or any other officer who was charged by the R. S. 1843 with the duty of protecting and preserving the surplus revenue fund, was a proper relator in a suit on a bond given to secure a loan from that fund.</p> <p>In a suit on a surplus revenue bond, an allegation in the declaration that the suit is brought “for the use of the surplus revenue fund,” is mere surplusage.</p> <p>The pleader, in a suit on four surplus revenue bonds, (which contained a stipulation that in case of a failure to pay any instalment of interest, the principal should become due and collectable, &c.,) stated the action to have accrued upon the non-payment of the annual instalments of interest; but the action was not brought until the principal on the last of the several bonds was due, and there was a breach to each count in which the nonpayment of the bond was averred. Held, that the defect, if any existed, was cured by the breaches last named.</p> <p>The surplus revenue fund belongs to the United States, but is held in trust by the state, who is the legal custodian thereof; and the averment, in a suit on a bond to that fund, that the bond had not been paid to the state, is sufficient.</p> <p>A defect in the mere form of a declaration can not be examined on demurrer to a defective plea.</p> <p>The E. S. 1843 allowed interest to be taken on loans of the surplus revenue, at the rate of 7 per cent, per annum in advance; and the statute fixing the rate of interest generally, and defining the offence of usury, expressly excepted from its operation those provisions of law which related to the loaning of the trust funds of the state.</p> <p>The bonds declared on in this case were substantially in the form prescribed by the statute to be taken on loans of the surplus revenue, and there was no averment in the pleas that they were made upon any other consideration. Held, that the presumption was that they were given for money borrowed from that fund.</p> <p>To a declaration upon an instrument which does not appear on its face to be usurious, a plea of usury must allege that an excess of interest was reserved with a corrupt intent.</p> <p>An agreement with the principal to enlarge the time for the payment of a debt, must he founded upon a consideration, in order to discharge the surety.</p> <p>An instruction is right, if correct in its application to the evidence, although it might be erroneous as an abstract proposition.</p> <p>It appeared in evidence, in the present case, that the bonds sued upon were given to settle a defalcation of the principal as agent of the surplus revenue fund, and they were made in the form required upon loans, to become due at future periods, with interest payable annually. Held, that the jury had a right to treat them as evidence of a loan.</p>

<p>By the chancery practice, if affirmative matter in an answer which is made a cross bill, is not denied either by a replication or an answer to it as a cross bill, it is taken as trae.</p> <p>A release of dower by the wife in the conveyance of the husband’s real estate, is a valuable consideration, and the sum to be paid for it may be secured to the wife through a trustee, if the parties so agree.</p> <p>The wife of a partner has an inchoate right of dower in real estate of the partnership, upon which the character of personalty has not been purposely impressed by the partners, and which is not needed to discharge the debts of the partnership or to adjust the claims of the partners as between themselves.</p>

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

<p>The party applying for an injunction upon the collection of a judgment, was only obliged, by the R. S. 1843, to indorse on his bill a release of errors in the judgment, when required so to do by the Court.</p> <p>An equitable estoppel is thus described: Where the payee, upon an agreement supported by a sufficient consideration, extends the time of payment to the principal, without the consent of the surety, the latter is discharged, the payee being equitably estopped.</p> <p>The payment of interest in advance is a sufficient consideration to support an agreement for further forbearance.</p> <p>Where the relation of principal and surety exists between the makers of a written instrument, though the instrument be wholly silent as to which is surety, and even be joint and several, the makers, as against the payee or obligee, for the purpose of letting in any act of the latter tending to affect the collateral relations of the makers, may show the true relation of the makers to each other.</p> <p>An agreement with the principal, in order to release the surety in a written instrument, need not operate to release the debt.</p> <p>A surety will be discharged by any agreement of the creditor with the principal, which, if violated, would give the surety a right of action.</p> <p>It is not necessary, to discharge the surety, that the agreement should be such as he could plead in bar of a suit; it is sufficient if it fetter and embarrass the discretion of the creditor.</p> <p>An instrument under seal can not be discharged by a mere parol agreement; but where the agreement is executed, the act, coupled with the agreement, is sufficient to discharge the obligation.</p> <p>An equitable estoppel may be set up as well at law as in equity.</p> <p>That a party has mistaken or been misadvised as to his rights, and so failed to set up a defence at law, does not entitle him to relief in chancery.</p>

<p>The condition of an insurance policy issued to the plaintiff, provided that persons sustaining loss by fire, should forthwith give notice thereof, in writing, to the company or their agent, and as soon after as possible, deliver as particular an account of their loss as the nature of the case would admit of, (and if within their power, render to the company a schedule of the articles destroyed or damaged, stating article by article,) signed with their proper hands, and that they should accompany the same with their oath or affirmation, declaring the account to be just, &c., and what was the cash value of the subject insured. Whenever demanded in writing, they were also required to produce an exhibit of their books of account, and vouchers in support of their claim, and permit extracts and copies thereof to be made, &c. The conditions further provided that any fraud or false swearing by the insured, should cause a forfeiture of all claims, and be a bar to all remedies under the policy. In a suit upon the policy for a loss of the subject insured, the plaintiff exhibited the statement furnished by him to the company under oath, as follows: “ One-story frame-house, 200 dollars; dry goods, 1,000 dollars; groceries, 150 dollars; queensware, 25 dollars; hardware, 25 dollars; the whole, 1,400 dollars.” The statement further showed that all the bills of goods purchased by him, were consumed by the fire, and that he was therefore unable to make out an invoice of the items and cost of the articles destroyed, but that to the best of his knowledge and belief, said statement was trae and just, and the fair cash value of the goods was between 1,400 and 1,500 dollars. It also appeared in evidence that the plaintiff’s invoices were consumed with his goods, and that he had no copies, and that the company’s secretary had called on him to sign an instrument requesting the persons from whom he had purchased the goods, to furnish the amounts of the invoices, but that he had refused to do so. The plaintiff obtained a verdict and judgment for 200 dollars less than the amount of his loss as alleged in his statement to the company.</p> <p>Held, that the plaintiff was not required by the conditions of the policy to sign the instrument presented by the company’s secretary.</p> <p>Held, also, that the excess of the plaintiff’s claim, as ftirnished to the company, over the verdict, did not show him to have been guilty of “ false swearing.”</p> <p>Held, also, that by “false swearing” was meant, tbe swearing to a false statement knowingly.</p> <p>An instruction will bo presumed to have been pertinent to the evidence, where the contrary does not appear.</p>

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

<p>Section 3, p. 426, 1 R. S. 1852, which, gaye to the wife, or in case there was no wife, then to the minor children of a person killed by the negligence or unskilfolness of the officers or servants of a railroad company, &e., 3 right of action against the company, was repealed by implication by s. 784, p. 205, 2 R. S.1852.</p>

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

<p>Where matters of defence are set up by special plea, before a justice of the peace, which are admissible in evidence under the general issue, inasmuch as the defendant may avail himself of all matters admissible under that issue without plea, it is unimportant whether a motion to reject such special plea is correctly decided or not. t,i ■ ’</p> <p>The R. S. 1843 so far removed the distinction which previously prevailed1, in regard to the transfer of negotiable paper before and after due, as to lóí:íh the same defences against a note assigned before as against one assigned after maturity.</p> <p>The declarations of the assignor of a note made while he was the holder, whether that was before or after it became due, were, under the R. S. 1843, admissible in evidence, in a suit by the assignee against the maker, to impeach the consideration.</p> <p>Evidence will be presumed to have properly been admitted, where the record does not show the contrary.</p> <p>A material alteration of an instrument made by a party who claims the benefit of it, without the consent of the party against whom it is sought to be enforced, renders it void.</p> <p>Where the alteration of an instrument is of such a character as to defeat entirely its operation for any purpose, as in the case of the erasure of the signature and seal to a deed, or other instrument, so that, admitting all to be true that appears upon the instrument when produced, it would be void in law, it should be explained, in the first instance, before it should be permitted to go to the jury. In other cases, the instrument should be given in evidence, and should go to the jury, upon the ordinary proof of its execution, although an alteration may appear in it, leaving the parties to such explanatory evidence as they may choose to offer. But if there is neither intrinsic nor extrinsic evidence as to when the alteration was made, the presumption of law is that it was made before or at the execution of the instrument.</p> <p>In a suit upon a note given in consideration of the assignment of a patent, the defendant, in order to show that no patent had ever been obtained, offered in evidence, against the plaintiff's objection, a certificate of the commissioner of patents, under his seal of office, stating that no such patent had been issued. Held, that the certificate was not admissible.</p>

<p>If A. execute a note to B., and C. indorse the same, parol evidence is admissible to show that O. intended to he held as a surety or a guarantor.</p> <p>A party can not complain of an instruction which is in his favor.</p> <p>A surety in a note is liable on the default of the principal, without notice.</p> <p>The insolvency of the maker of a note renders a notice of non-payment to the guarantor unnecessary.</p>

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

<p>A. being called as a juror and examined by the Court, touching his qualifications, said, that he had not formed or expressed an opinion iu the case, nor had he formed or expressed an opinion as to which of the parties should succeed; that his mind was free to decide the case according to the evidence, though he had formed an opinion as to some of the matters in controversy. Held, that a challenge for cause would not lie.</p> <p>The refusal of a specific instruction can not be alleged as error, where the instruction was given, substantially, by the Court, in a general charge.</p> <p>A. and B. covenanted with O. and D. to furnish to the latter, at their distillery, &c., a specified quantity of slop, &c., during, &c., and also to furnish “good and sufficient pens, and keep them in repair, for feeding all the hogs” that the covenantees might wish to feed on the slop so to be furnished by the covenantors. In a suit against the covenantors for not keeping the pens in repair as stipulated, they asked the Court to instruct the jury that they were only bound to keep the pens in “ordinary repair.” Held, that the instruction was correctly refused.</p>

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

<p>When a party designedly produces a false impression, in order to mislead, entrap, or obtain undue advantage over another—in every such case there is fraud—an evil act and an evil intent.</p> <p>When a party to a contract places a known trust and confidence in the other party, in a mixed question of law and fact, and acts on his opinion, and the party in whom such trust was reposed misleads him, equity will relieve.</p> <p>Pamily settlements, to be held sacred, must be made in good faith. Praud or circumvention is fatal to them. Such compromises, fairly entered into, are binding, whether the uncertainty arises upon matters of fact or of law. But if the parties are not mutually ignorant, the case admits of a very different consideration, whether the ignorance relate to the facts or the law. Thus a Court of equity will not sustain a family settlement, where, from a mixture of mistake of title, personal ignorance or liability to imposition, agree* ments, or acts unadvised, or improvident, or made without due deliberation, are entered into. ÍTor will such compromises be sustained when it is apparent that the parties did not Understand their rights, or the nature of the transaction. In all such cases, Courts of equity will hold the settlement invalid, upon the common equitable principle of protecting those who are unable to protect themselves, and of whom an undue advantage is taken.</p> <p>To justify the rejection of evidence, it must either be contradicted, or improba* ble, or obnoxious according to some established legal mode of testing truth.</p> <p>Where, in chancery, the prayer of tho bill was that tlié answer should be without oath, an answer under oath had no other effect than as if without oath.</p> <p>Where the answer was required to be without oath, a preponderance of testimony in support of tho bill was sufficient.</p> <p>Fraud may be deduced not only from deceptive or false representations, but from facts, incidents and circumstances which may be trivial in themselves, but decisive in the given case of a fraudulent design.</p> <p>If a person with whom a deed is left as an escrow, to bfe delivered to the grantee upon his performance of a particular act, passes it to the latter, before he has performed such act, such possession of the grantee does not import a delivery.</p> <p>A purchaser of real estate who buys wiili notice that the title of the vendor is to be disputed for fraud, is entitled to Ho coilsideration in a Court of equity, if the fraud be established.</p>

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

<p>A principal is not liable to one of his servants for injuries sustained through the negligence of another servant, when both are. engaged in the same business.</p> <p>Complaint by a widow against a railroad company, to recover damages for the loss of her husband, who was killed, as the complaint alleged, while traveling as a passenger in one of the defendants’ cars. Answer, that the husband was not a passenger, but a servant of the company, and that the accident by which he lost his life happened through the negligence of his fellow-servants acting with him in the management of the train. Held, that the answer was sufficient.</p> <p>Section 3, p. 426, 1 E. S. 1862, which gave to the wife, or in case there was no wife, then to the minor children of a person killed by the negligence or unskilfulness of the officers or servants of a railroad company, &c., a right of action against the company, was repealed by implication by s. 784, p. 205, 2 E. S. 1852.</p>

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

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

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

<p>APPEAL from an order of injunction granted by the associate judges of the Vanderburgh Circuit Court in vacation.</p>

<p>The legal effect of a divorce is determined by the law in force when it was granted.</p> <p>By the B. S. 1831, all divorces were a vinculo matrimonii, and either party, after the divorce was granted, could lawfully marry.</p> <p>Dower, by the B. S. 1838, was substantially as at common law.</p> <p>Where husband and wife are divorced a vinculo, the wife, after the husband’s death, is not his widow.</p> <p>The widow alone, at common law, is entitled to dower.</p> <p>A husband was divorced from his wife, under the B. S. 1831, and died, while the B. S. 1838 were in force, seized in fee of land. Held, that the wife thus divorced was not entitled to dower.</p>

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

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

<p>Suit by A. against 23., the proprietor of a canal-boat, to recover the value of a carpet-bag and its contents, alleged to have been lost by A. while in B.’s possession as a common carrier. The facts of the case were as follows: A., on his return journey from California, went aboard B.’s packet-boat at Fort-Wayne, on the Wahash and Erie canal, taking with him his carpet-bag, containing certain articles of clothing, &c., and near 4,000 dollars in gold. He paid his fare, simply as a passenger, to Bagro, another point on the canal, and deposited his carpet-bag, with the luggage of other passengers, on the deck of the boat, which was generally used for that purpose. On arriving at Bagro the carpet-bag was missing, and it was afterwards found in the canal. The gold and clothing had been abstracted, and the circumstances showed that they had been stolen. There was, also, evidence tending strongly to show that they had been stolen by one of the defendant’s boatmen. A. made no communication to any officer of the boat, during the passage, as to the contents of the carpet-bag. The boat was provided with a small safe, and there was evidence tending to show that passengers were notified to have articles of value placed in it or keep them at their own risk; but on this point the evidence was very conflicting. The boat was in the habit of carrying articles of freight, but did not book or check baggage. The affidavit of A. was admitted on the trial to prove the contents of the carpet-bag; and there was a verdict and judgment for the amount of the gold, as well as of the clothing, &e.</p> <p>Held, that the delivery by A. was, as to the carpet-bag and the articles of ordinary baggage it contained, sufficient.</p> <p>Held, also, that B. was liable for the value of the ordinary articles of baggage, but not for the gold.</p> <p>Held, also, that A.’s affidavit, so far as it related to the ordinary articles of baggage, rvas properly admitted.</p> <p>Common carriers of passengers are not liable for articles of value not transported to supply any wants of the traveler, as such, on his journey, and not made known to the carriers or their agents, nor paid for as freight, but put aboard the conveyance by the passenger simply as baggage and so treated by himself on the journey.</p> <p>Articles treated as baggage may consist of clothing, money for defraying traveling expenses, a few books for the amusement of reading, a watch, a lady’s jewelry for dressing, &c.</p>

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

<p>Testimony must be objected to when offered, or tbe objection will be regarded as waived.</p> <p>Our statute in relation to contracts not to be performed within a year, is substantially like that of 29 Car. 2, c. 3, s. 4, which has always been held to apply only to contracts which, by the express stipulations of the parties, wore not to be performed within a year, and not to those which might or might not, upon a contingency, be performed within a year.</p> <p>That statute has no reference to agreements founded upon a past consideration.</p> <p>An express promise can only revive a precedent good consideration which might have been enforced at law, through the medium of an implied promise, had it not been suspended by some positive rale of law; but can give no original right of action, if the obligation on which it is founded never could have been enforced' at law, though not barred by any legal maxim or statute provision.</p> <p>There is no implied promise from the father of a bastard child to the mother to furnish it a support.</p> <p>A promise by the father of a bastard child to pay the step-father for tho child’s support, past and future, if he will continue to support it, is binding.</p>

<p>An application for a specific performance is addressed to the sound discretion of the Court.</p> <p>Such discretion is not the individual discretion of the judge, but that judicial discretion which conforms itself to general rules and settled principles.</p> <p>Even where the contract sought to be enforced is in writing, a décree for a specific performance is not a matter of course, but rests in the sound discretion of the Court, in view of all the circumstances.</p> <p>Generally, it may be stated, that Courts of equity will decree a specific performance when the contract is in writing, is certain, is fair in all its parts, is for an adequate consideration, and is capable of being- performed; but not otherwise.</p> <p>Bill for a specific performance of a contract for the sale of land. The facts were as follows: A., in February, 1847, agreed verbally with B. to sell to him twenty-nine acres of land, for 700 dollars, to be paid for when B. sold his pork. There was no part payment of the purchase-money. There was no evidence of any delivery of possession by A. further than this. When applied to for that purpose, he declined doing so, assigning as a reason that the land was under lease, until the next March, &c. B., in said month of March, took possession; whether with or without A/s consent did not appear, further than that when A., in the spring of 1847, was applied to for tho purpose of renting the land as pasture, he replied that he had sold it to B., to whom application should be made. In October, 1847, A. and wife acknowledged a deed for said land in which B. was named as the grantee, and which A. remarked to the magistrate who took the acknowledgment, was intended for B. The magistrate had drawn the deed some time before by A.’s express directions, but what afterwards became of it did not appear. The bill averred a sale by B. of his hogs and a tender of the purchase-money in November, 1847; and a continued readiness to pay thereafter; and also a tender of the money and interest in Court; also that B. had made valuable improvements. A. pleaded the statute of frauds, accompanied by an answer, without oath, denying the delivery of possession, the improvements, &e. The improvements made by B. consisted chiefly of clearing done, which were about compensated by the sale of cord-wood taken from the land. Held, that B., under the circumstances, was not entitled to a specific performance.</p>

<p>Suit by a father for the seduction, of his daughter. The second paragraph of the answer alleged, that the daughter was not, at, &c., the plaintiff’s servant, ■ but owed and was then rendering service to the defendant, as his apprentice, by virtue of a written agreement, dated January 31, 1845. The agreement, which was signed by the plaintiff and defendant, but was without seal and without acknowledgment, was set out in full. It stipulated that the daughter, then nine years old, should be bound to the defendant, as his apprentice, to learn the duties of housekeeping, for nine years from the 16th of March, 1844. In consideration of which the defendant agreed to give the daughter a year’s schooling, and at the expiration of the term, to give her certain specified articles of household furniture. The answer further alleged that said agreement had not expired at the time of the seduction, nor at the birth of the child; that at the time the child was born, the daughter was living with the defendant, as his servant, and that afterwards the contract was canceled by the mutual consent of the parties.</p> <p>Held, that the instrument was not binding as an indenture of apprenticeship, under the E. S. 1843.</p> <p>Held, also, that the instrument did not give the defendant a right to control the daughter’s person, nor to compel her return.</p> <p>Held, also, that the agreement operated merely as a license to the daughter to appropriate her time and wages to her own use, until she was eighteen years old; and that it was competent for the father to revoke the license,' and re- • claim her person at pleasure, being answerable to the defendant for a breach. of the agreement, if she was taken away without just cause.</p> <p>Held, also, therefore, that the paragraph was insufficient on demurrer.</p> <p>The relation of master and servant exists constructively between the father and his infant daughter, although she is actually in the service of another, provided the father has a right, at any time, to reclaim her services.</p> <p>A demurrer was sustained to a paragraph of an answer, which set out, by way of defence, a written agreement. The agreement was admissible in evidence upon the trial of issues raised by other paragraphs. Held, (the contrary not appearing,) that the defendant must be presumed to have had the full benefit of the agreement. . •</p> <p>A defendant can not allege for error the overruling of a demurrer, where his defence wás not prejudiced thereby.</p> <p>In an action by a father for the seduction of his daughter, a seeming insensibility of the father to his daughter’s disgrace, can not be shown in mitigation of damages.</p>

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

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

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

<p>After the organization of the Courts of Common Pleas, until the R. S. 1852 took effect, proceedings for misdemeanors might be commenced simply by filing with the clerk a written charge, verified by affidavit.</p> <p>The act of 1848 to prohibit the sale of spirituous liquors in a less quantity, &c., in Wayne, Washington and Franklin townships, in Wayne county, although local, is not a private statute.</p> <p>To constitute a statute a public act, it is not necessary that it should extend to all parts of the state: it is a public act if it extends equally to all persons within the territorial limits described by the statute.</p> <p>The Court is bound to notice a public act without pleading it. *</p> <p>An affidavit against a defendant for a misdemeanor charged him by his surname, alleging his Christian name to be unknown. Held, on motion to quash, that he was sufficiently identified.</p> <p>The city of Richmond was incorporated by an act approved February 24, 1840, the 15th section of which gave the mayor, in civil and criminal cases, the jurisdiction of a justice of the peace, and the 46th section of which provided for the recovery of a penalty for the violation of any ordinance, by-law or police regulation, in an action of debt. This act was amended by an act of 1851, which declares the sale of spirituous liquors in any quantity in said city, except for the necessary uses in the arts, &e., to be unlawful; and the common council is authorized to carry out the provisions of said act, and to provide for the recovery of a penalty not exceeding, &c., for any offence. The second section gave the mayor exclusive jurisdiction of all offences committed under said act and the by-laws passed in pursuance thereof, the penalties for which were to be recovered in the manner provided in the act of incorporation. The common council passed an ordinance, pursuant to the provisions of said act, giving a penalty not exceeding, &c., for each offence, to be recovered in the manner prescribed by the charter. Held, that the action for the penalty for selling spirituous liquor, except, &c., under the amendatory statute, was a civil suit, and not a criminal prosecution, and, consequently, was not a bar to a prosecution by the state for the same act.</p>

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

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

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

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

<p>The Circuit Courts under the constitution of 1851 were a continuation, in a somewhat modified form, of the Circuit Courts under the constitution of 1816. Suits in them were not abated by the constitution of 1851; and the former laws regulating the practice wore continued in force until changed by legislation under the latter constitution, and governed the practice of the existing Circuit Courts.</p> <p>A subscription of stock to a railroad company contained a provision that the stock subscribed should be paid in cash at such times and places as should thereafter be directed by the directors of the company, and should be applied to the construction of the road.</p> <p>Held, that the subscription could not become payable until the directors, at a regular meeting, had fixed the time and place of payment.</p> <p>Held, also, that it was not necessary to give notice to the subscriber of the time and place of payment.</p>

<p>A temporary injunction ought not to be granted to restrain the defendant from removing property, the subject of commerce, out of the jurisdiction of the Court, (such as pork and lard, suitable to be sent abroad to market,) unless the plaintiff shows that he has an immediate interest in such property, and that he will be injured by the removal, and that the interference of the Court is necessary to save him from serious loss or damage.</p> <p>A temporary injunction ought not to be granted in such case, without notice to the adverse party. If the complaint shows such an emergency as will justify the interference of the Court, an order should be granted to restrain the removal, for a reasonable time, until notice can be given.</p> <p>Allegations that at the time of the execution of a written contract for the sale of the vendor’s interest in the joint property of himsolf and the purchaser, the vendor was dangerously sick; that the purchaser insisted upon pirnchasing his interest; that being in a low and weak state he signed the contract of sale; that it was made in view of his approaching death; and that he had recovered, furnish no ground for setting aside such contract, no unconscientious advantage appearing to have been taken, and no fraud being alleged.</p> <p>A parol condition made at the time of such contract, that if the vendor recovered it should be set aside, is void.</p> <p>A vendor seeking to rescind a contract of sale must offer to return the consideration received.</p>

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

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

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

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

<p>A., by his note, promised to pay to the Terre-Haute and Richmond Railroad Company 200 dollars, in consideration that they would locate their depot on block 94 in Indianapolis, to be paid when the company should commence the construction of the depot. When the note was given the line of road provided for by the charter of said company extended from Terre-Haute, through Indianapolis, to Richmond, a distance of 150 miles. The company afterwards procured from the legislature, and accepted, an alteration of their charter, by which their line of road was limited to the distance between Terre-Haute and Indianapolis, being thus reduced in length one-half, and the other part of the line was placed under a separate corporation denominated the Indiana Central Railway Company, which constructed its road, and located its depot in another part of Indianapolis. The first-named company constructed a freight-depot alone on said block 94. A. was not a stockholder in the company nor a party to the charter.</p> <p>Held, that by the alteration of tho charter of the Terre-Haute and Richmond Railroad Company and the acceptance thereof by the company, the company became substantially a different corporation and were unable to perform the condition upon which the note was to become payable.</p> <p>Held, also, that the circumstance that the depot located on block 94 was of some advantage to A. was of no importance.</p>

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

<p>Bill to foreclose a mortgage. The defendant having pleaded certain matters in defence, the cause was continued in order to take depositions. At the next term the defendant moved for another continuance, upon his affidavit alleging that notice was given by him for taking depositions at M., &c.; that the parties attended, when the plaintiff proposed to examine two witnesses first, the defendant waiving notice, and that afterwards those of the defendant should be examined, to which arrangement he assented, fully understanding that he was to have an opportunity to examine his witnesses afterwards; that the plaintiff’s witnesses were examined, consuming most of the allotted time; that one witness was examined for the defendant, when the hour of four arrived and the plaintiff refused to proceed further in taking depositions; that the officer who was taking the depositions decided that he could not proceed without the consent of the parties; that the plaintiff immediately left the town and he had not time to serve him with another notice and take the depositions before the term; that he then had witnesses ready to he examined, by whom he expected to prove most of the matters alleged in his answer by way of defence, and that the affidavit was not made for delay, &c. Held, that under the circumstances, the defendant had a right to a continuance.</p> <p>Where junior mortgagees are made defendants to a bill of foreclosure, and make default, the Court can not order a payment of their respective mortgages, but should merely foreclose such mortgagees in favor of the plaintiff.</p>

<p>Proceeding by A. against B. to enjoin B. from obstructing the flow of the water of a stream to A.’s mill, by the manner of erecting and maintaining a dam above it. The complaint stated that for, &c., the plaintiff had been the owner of a mill, &c., propelled by water on his own land; averred the recovery of a judgment against B. for such obstruction; that the defendant still kept up the dam, &c.; and that A.’s mill had thereby been rendered valueless. Held, that the complaint was not defective for omitting to show that the gbstruction of the water was unnecessary to B. in the fair and reasonable use of the stream.</p> <p>A party to a judgment can not impeach it collaterally, on the ground that it was rendered upon false testimony.</p> <p>Ev&y riparian proprietor has an equal right to the flow of the water through his land; and no one has a right to use it to the material injury of those below him. If he diverts the stream, he must return it to its natural channel when it leaves his estate.</p> <p>But it is not every injury to a proprietor below that will confer a right of action: it is necessary, in every such case, to take into consideration the capacity of the stream, the adaptation of machinery to it, and all the attendant circumstances; and when all these are properly considered, if the proprietor below is materially injured, when considered in relation to the facts of the particular case, ho is entitled to redress.</p>

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

<p>An indictment charged an offence to have been committed on, &c., in the year “one thousand eight hundred and fifty-too.” Held,, that the word “too” must he construed to mean the numeral “two,” and not to have been used as an adverb.</p>

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

<p>A. stipulated to deliver to B. fifty bogs at any time between, the 10th and 20th of November that B. might choose to call for them. ‘-Held, that a demand by B. on the 19 th for the delivery of the hogs on the 20th of November was not sufficient under the contract.</p> <p>Section 787, p. 205, 2 E. S. 1852, applies only to statutory time and not to the computation of time in the case of ordinary contracts.</p>

<p>A. was elected clerk of Pulaski county in August, 1845, for seven years. In 1841 the office of county auditor was created by law, But the act creating it provided that the duties thereby enjoined upon auditors should continue to be discharged by the county clerks, until auditors should be elected and qualified. In 1846 the legislature enacted that nothing in the act of 1841 should be so construed as to affect those clerks who, at the passage of the act of 1846, were exercising the functions of auditor in those counties where the number of voters did not exceed twelve hundred; but that they should continue, ex officio, to exercise the duties of auditors until the number of voters should exceed twelve hundred. B. was elected auditor of said county in 1851, but the county had not then, nor .before, nor has it since had twelve hundred voters.</p> <p>Held, that B.’s election was illegal.</p> <p>Held, also, that A. had a right, ex officio, under the constitution of 1851, to discharge the duties of auditor until the expiration of his official term as clerk.</p>

<p>In slander, the averment in the declaration of 'a slanderous charge which assumes the existence of a fact, is a sufficient averment of such fact; especially on general demurrer or after verdict.</p> <p>Whoredom includes every species of illicit intercourse between the sexes.</p> <p>A declaration for slander by a female plaintiff, showing a charge made against her of whoredom, is good.</p> <p>In slander, if the declaration is sufficient without regard to the colloquium or innuendoes, they may be regarded as surplusage.</p> <p>An inference expressed in the colloquium or innuendoes in a declaration for slander, if not a correct inference from the words averred to have been spoken, can not affect the sufficiency of such averments.</p> <p>Colloquiums and innuendoes are only necessary to remove uncertainty in the identification of persons, or in the meaning of words and sentences and their application.</p> <p>In cases of such uncertainty they form a material part of the declaration and can not be rejected as surplusage.</p>

<p>A declaration in assumpsit, in the Court of Common Pleas, in a suit commenced March 9, 1853, contained two counts, one on a note for 700 dollars, and the other for 200 dollars for money paid, &c. The damages in the conclusion of the declaration were laid at 1,500 dollars. The defendant having moved to dismiss the suit for the want of jurisdiction, the plaintiff, during the pendency of the motion, obtained leave to amend the declaration by stating the damages at 1,000 dollars; and, having made the amendment, the defendant’s motion was overruled. The defendant then moved for a continuance of the cause, on account of the amendment, but the Court refused the motion.</p> <p>Held, that, in the refusal to dismiss the suit, there was no error.</p> <p>Held, also, that the amendment, not haying materially changed the plaintiff’s claim, did. not entitle the defendant to a continuance.</p> <p>A count on a promissory note averred that “the defendant, by Ms certain note in writing, then due and payable, promised the plaintiff,” &e. Held, on demurrer, that the undertaking of the plaintiff was sufficiently alleged.</p>

<p>It was held that a new trial should have hcen granted to the appellants in the Court below, under the special circumstances shown by an affidavit made in support of their motion, the statements in the affidavit not having been controverted by the adverse party.</p> <p>The truth of facts alleged in an affidavit in support of a motion for a new trial, may be controverted by the adverse party.</p>

<p>A count which, is not a nullity should not be rejected on motion.</p> <p>The plaintiff can not assign for error the dismissal of his suit, unless he excepted to the dismissal in the Court below.</p>

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

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

<p>Where statutes passed at the same session of the legislature, though apparently conflicting, are not directly repugnant, they should be construed in pari materia as one statute, and so as to carry out what appears to have been the main intent of the legislature.</p> <p>A local act approved January 16, 1849, provided, that the auditor of La Grange county should receive 700 dollars per annum, which should be a full compensation for all services which he might perform as such officer. It also provided that it should be his duty, on the first Mondays in March and September of each year, to make to the county board, in such form as it should direct, a return in writing, comprising all the fees and emoluments of said office, and all compensation for labor in any manner received by him in virtue of said office, for the half year ending at that time, which return should be verified, &c. It further provided that it should be the duty of the board to make half-yearly allowances to such auditor of such sum as would make his half-yearly salary equal to 360 dollars, to be paid out of the treasury of said county. The act “to increase and extend the benefits of common schools,” approved January 17, 1849, after requiring county auditors to perform the several duties, &c., which, before that time, belonged to the office of school commissioner, provided that for the discharge of such duties, &c., they should be allowed by the county boards one-half of one per cent, upon the amount of school fends on loan in their respective counties.</p> <p>Held, that said statutes should be construed thus: Tor services relative to the school fund, each county auditor should receive, as a compensation, one-half of one per cent, upon the amount of that fend on loan in his county; provided, that the auditor of La Grange county should not be allowed such per centum in addition to his fixed salary of 700 dollars.</p>

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

<p>A motion for a new trial will not be entertained after a motion in arrest of judgment.</p> <p>A judgment will not be reversed on account of errors of tbe Court which were harmless.</p> <p>A suit will lie for services rendered by an infant under an unfulfilled special contract.</p>

<p>Debt on a guardian’s bond, dated February 13, 1833. Breach, that the guardian had received large sums, &e., the property of his wards, which he had converted to his own use, of which the relator was entitled to a sixth; that he had not accounted therefor to the relator, nor to the Probate Court, and that he had left the state and gone to parts unknown, so that a demand could not he made of him; and that the relator was twenty-one years of age. Process was served on only one of the defendants, who was a surety. He answered in several paragraphs, as follows: 1., That the cause of action did not accrue within three years before the commencement of the suit. 2. That the guardian had not been called on to account. 3. That he had complied with all the orders of the Probate Court as guardian, &c. 4. That on the 13th of February, 1844, he rendered to the Probate Court a just and true account of his guardianship, in discharge of his trust. 5. That the relator had made no demand upon the guardian for an account and a settlement. Held, that demurrers to these several paragraphs were correctly sustained.</p> <p>Pacts alleged in a complaint, which are not denied by the answer, arc regarded as admitted.</p>

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

<p>A., as administrator of B., filed his aceount'for a final settlement, which contained an item, on the credit side, of an account of one C. paid, &c. The item was supported hy the account, verified by the oath of C., and his receipt to the administrator on the back thereof. The heirs of B. objected to this (item, and, having appeared, they and the administrator, by agreement, submitted the validity of the credit to the Court. One ©f the heirs having, as the record stated, “released his interest,” was offered as a witness and excluded. The trial was had under the R. S. 1843.</p> <p>Held, that the burden of proof was on the heirs.</p> <p>Held, also, that the release, even had it been of the interest of the witness as to the item in question, would not have rendered him competent.</p> <p>Where the record states that a witness released his interest, but does not state to whom, or how far it extended, and the Court below has held it insufficient, it will be so regarded in the Supreme Court.</p> <p>If the party on whom lies the burden of the issue offers no evidence, the adverse party is entitled to a judgment.</p> <p>Even though the admission of evidence was erroneous, yet if the judgment is right notwithstanding, it will not be reversed.</p>

<p>When the evidence is not in the record, if, upon any probable state of facts, the instructions of the Court would be correct, the existence of such facts will be presumed in support of the judgment; but if the instructions would be wrong, on every state of facts, and were calculated to direct the jury to an improper basis for their finding, they will be presumed to have misled the jury.</p> <p>Assumpsit by an infant upon a special contract, whereby she agreed to work for the defendant for a term specified, and he agreed to furnish her board, clothing, &c., and also to furnish her a cow, a bed, &c., in consideration of such service. Averment, that the plaintiff faithfully performed her part of the contract, but that the defendant wholly failed to board and clothe her properly, or to deliver the articles of property or any of them. There was also a common count for work and labor. The evidence did not appear in the record. The Court instructed the jury that they should take into consideration the value of such a home as the plaintiff had enjoyed, &c.; her opportunity of acquiring instruction from the defendant’s wife in matters of housekeeping; and the advantages resulting to her from a residence in a respectable family. Held, that these instructions were wrong.</p> <p>An appeal was taken from the judgment of a justice of the peace to the Circuit Court, in which the defendant made a material amendment of his defence. The plaintiff was an infant, and her next friend being unwilling to continue liable for the costs, was discharged, and she was allowed to prosecute, by another, as a poor person. The judgment was reduced in the Circuit Court more than 5 dollars. The costs of the suit up to the time of the discharge of the first next friend, including the costs of said amendment, were taxed against him. Held, under the E. S. 1843, that this was wrong.</p>

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

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

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

<p>A. executed a title-bond to B. conditioned for the conveyance of a town-lot upon full payment of the purchase-money. C. having loaned to B. money to complete the payment, received from him an assignment of the bond, by way of security, and afterwards received a deed from A. B. having erected buildings on the lot, the mechanics instituted legal proceedings to enforce their liens. O. was a party. The Court decreed that the property should be sold and the proceeds applied, first to the discharge of the debt to C., and next to the satisfaction of the mechanics’ lions. B., after the decree and before the sale, assigned his interest in the lot to D., who bid off the property at a sum exceeding the amount of the decree, and the sheriff returned to T>. the surplus. Before the assignment to D., E. and others having recovered judgments before a justice of the peace, filed transcripts thereof in the clerk’s office to bind said real estate, and D. and the sheriff were notified of the fact before the sale. B. was insolvent.</p> <p>Held, that the transcripts never became a lien upon the lot.</p> <p>Held, also, that E. and others had no equitable claim upon said surplus.</p> <p>Held, also^that the surplus was properly delivered by the sheriff to D.</p>

<p>The party in whose favor a demurrer is decided, can not complain of the decision.</p> <p>A material averment in an answer, which is not noticed by the reply, is regarded as admitted.</p> <p>A grantee to whom land has been conveyed with a covenant against incumbrances, who claims to have discharged an incumbrance after the execution of the conveyance, must show that it was a valid and subsisting incumbrance when the deed was executed.</p>

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

<p>A. purchased from B. two town-lots, and received a title-bond, conditioned for the execution of a conveyance upon full payment of the purchase-money. Having failed to pay the last instalment, a judgment was obtained therefor before a justice of the peace. Execution thereon and a return of no goods, &c. To a bill by an assignee of the judgment against A. and B. to subject the lots to sale to satisfy the judgment, the defendants answered that B. only owned two-thirds of the lots, and hence could not convey according to contract. Replication, in avoidance, &c.</p> <p>Held, that A., had he elected, at the proper time, to rescind the contract, in consequence of the partial failure of consideration, would have been entitled to the purchase-money and interest, and would have had a lien on the lots for it; but, held, that having elected to retain them, he had an equitable interest therein at least to the extent of two-thirds, which might be subjected to execution upon said judgment.</p> <p>A bill in equity ought not to be dismissed for the want of proper parties.</p>

<p>In an appeal taken to the Circuit Court from proceedings of the board of commissioners in laying out a highway, a transcript of the proceedings of the hoard was filed, hut none of the original papers. Hdd, that the appeal was properly dismissed on motion.</p> <p>The Circuit Court dismissed an appeal from the hoard of commissioners, and no exception was taken. Hdd, that an appeal would not lie to the Supreme Court.</p>

<p>Action upon a written agreement, whereby the defendants agreed to sell to the plaintiffs their entire crop of com, at 40 cents per bushel, to he measured by the two-foot gauge, at the rate of two cubic feet per bushel; which measurement was to be final, whether the same should exceed or fall short of the statute weight. The complaint stated, that prior to the date of the agreement, the defendants, with intent to defraud any person who might purchase the com, had placed large quantities of rails and other substances amongst it, so as not only to conceal the same, but to form large cavities, and increase the apparent bulk of the com; that while the corn was in this condition it was gauged to the plaintiffs and received by them, in ignorance of the fraud, &c., at, &c., (stating the number of bushels and the excess thereof over the real quantity). Issues of fact, &c., trial by jury, and verdict and judgment for the plaintiffs. The evidence was not set out in the record. The Court instructed the jury, that if, on account of the fraud of the defendants, the quantities of foreign substances placed among the com, and the plaintiffs’ loss, could not be precisely ascertained, the jury might regard the difference between the gauged measure and the weights, and all other facts in evidence bearing upon the question of amount, &c.</p> <p>Held, that the instructions must he presumed to have been applicable to the evidence.</p> <p>Held, also, that the instructions were correct.</p>

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

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

<p>In a claim for damages, under the R. S. 1838, for injuries to land occasioned by the construction of a public work, the same strictness is not required in the averments as in pleadings in a Court of record.</p> <p>The written statement of the claim should show, however, whether the injury was occasioned by the passing through and appropriation of the claimant’s land, or the taking of timber and other materials for which the statute provides.</p> <p>A claim for damages, governed by the provisions of the R. S. 1838, for an injury to the claimant’s land occasioned by the construction of a railroad, stated that the land was injured, &c., to the amount, &c., as follows: that the road, as located, “angled” through the claimant’s land, and passed over the same, &c., to the distance, &c., and over a part which was improved and cultivated; wherefore, &c. Held, that the statement was sufficient to enable the claimant to recover for the injury occasioned by the grading of the road, and the division of his land into inconvenient parts.</p>

<p>By the act of 1841, “to provide for the payment of the debts contracted by the late mayor and common council of the town of Lafayette, under the charter of said town,” the board of commissioners of Tippecanoe county were constituted a Court of claims to adjudicate upon the demands against the late corporation, with power to levy and collect from the corporators alone the necessary taxes to pay said demands.</p> <p>^Neither the auditor nor the board of commissioners of Tippecanoe county had authority, under that act, to issue an order for the payment of a demand against the late corporation of Lafayette out of the general funds of the-county.</p> <p>An agent may bind Ins principal by acts, and sometimes by omissions of duty, but he can not bind others.</p>

<p>A note was made payable by the makers when able. In a suit against them upon the note, it was proved that when they made it they had a stock of goods worth 3,000 dollars.</p> <p>Held, that the note matured so soon as the makers were able to pay it.</p> <p>Held, also, that the evidence showed, prima facie, that they were able to pay the note as soon as it-was given.</p>

<p>An indictment was found against A., on the 21st of November, 1854, for the murder of B., alleged to have been committed on the 11th of October, 1854; and he was immediately put on trial, and found guilty of murder in the second degree. The homicide was committed when A. and B. were both drunk, and the evidence consisted chiefly of A.’s confessions, and the testimony of one C. to a threat made by A. about eighteen months before, &e. The case did not seem to be one of great aggravation. Motion for a new trial, on the affidavit of A. that he was surprised by C.’s evidence, and that it was false, which he could prove, if a new trial were granted, by persons named; that he had been in confinement ever since the death of B., and had had no opportunity to prepare, and no means wherewith to employ counsel; that the defence was made by counsel assigned to him when the case was called for trial, who knew nothing of the circumstances, except as they were developed in the evidence, &c. Held, that, under all the circumstances, a new trial ought to have been granted.</p>

<p>Bill in chancery under the B. S. 1843. Some of the defendants were notified of the pendency of the suit, as non-residents, by publication, and a decree was taken against them by default. No affidavit of their non-residence was made. A guardian ad litem was appointed for other defendants, who were minors, and a decree was taken against them; but it was not shown that they had any notice of the suit, by service of process or otherwise. Held, that the Court had not acquired jurisdiction of the persons of the defendants mentioned, and that the decree against them was, consequently, erroneous.</p> <p>A Court of equity cannot appropriate choses in action of a debtor to the payment of a demand of a creditor.</p>

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

<p>In replevin, the plea of non delinet, under the E. S. 1843, put in issue, not only the detention of the goods, but also the property of the plaintiff therein.</p> <p>In replevin, the plea of property in the defendant imposes upon the plaintiff the burden of proving property in himself.</p> <p>The plaintiff in replevin, to maintain his action, must prove a right to the immediate possession of the goods. Proof of a joint ownership with the defendant, therefore, as a partner, or the like, is not sufficient.</p>

<p>A judgment will not be reversed on account of the improper admission or rejection of testimony, if the testimony could not have had any material influence.</p> <p>A witness was admitted to testify, while the R. S. 1843 were in force, whose competency was objected to on account of interest. The extent of the interest of the witness was stated by the Court to the jury. The R. S. 1852 having taken effect during the pendency of the writ of error, held, that the interest of the witness furnished no ground for a reversal of the judgment.</p> <p>A party who, by cross-examining a witness as to facts and circumstances not connected with the matters stated in his direct examination, elicits evidence to his prejudice, can not afterward object that such evidence was inadmissible.</p> <p>Suit against the proprietor of a steamboat for negligence in towing a flat-boat, by which the caigo of the flat-boat was sunk and greatly damaged. There was evidence tending to show that the flat-boat had been unskilfully loaded, so as to render the towing more hazardous; hut that the defendant was apprised of the fact, and that the immediate cause of the injury was the gross carelessness of the defendant, in towing the boat at an improper speed. It was also shown that the plaintiffs agreed in writing .that the flat-boat should be towed at their risk.</p> <p>Held, that, without the writing, the defendants were liable for the injury.</p> <p>Held, also, that the writing did not exempt the defendants from liability for gross negligence.</p>

<p>An appeal cannot be taken from the judgment of a Court imposing a penalty for a contempt, unless the appeal is specially authorized by statute.</p> <p>There is no statute in force in this state which allows an appeal in such cases, unless, possibly, a statute in relation to an appeal by attorneys; and that seems not to be in existence.</p> <p>Semble, that, in the absence of any special statutory provision, the modes of redressing the parties’ own wrongs and punishing the inflictors of them, in cases of contempt, are, 1. By habeas coi’pus, in which a void commit-meat for a contempt will he disregarded, and the party discharged from custody. 2. By impeachment of the judges wrongfully exercising the power. 3. Perhaps hy civil suit against those concerned in inflicting the wrong.</p>

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

<p>To render the assignment of a patent valid, under the act of congress approved July 4, 1836, it is not essential that it shall have been recorded.</p>

<p>Where the verdict is supported by the weight of evidence, it is immaterial what instructions the Court gave to the jury.</p> <p>In trespass before a justice of the peace, under the K. S. 1843, the damages laid in the conclusion of the declaration constitute the amount of the plaintiff’s claim, in determining the justice’s jurisdiction.</p>

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

<p>a ^ r®'view) as a general rule, tlie same persons should be made parties who were parties to the proceeding sought to be reviewed; but they may be made complainants or defendants according to their interests in the matter to be reviewed.</p>

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

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

<p>The secretary of a private corporation drew a draft upon the treasurer for the payment of a certain sum for work done by the drawee; but the draft did not specify when it should be payable.</p> <p>Held, that it could not draw interest till there was a demand on the treasurer and a refusal of payment.</p> <p>Held., also, that the circumstance that the drawee had been told by a person connected with the corporation, but not with the treasury department, that thero were no funds on hand, did not dispense with the necessity of such demand.</p>

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

<p>Under the act of 1853 “to regulate the retailing of spirituous liquors, and for the suppression of the evils arising therefrom,” it was not necessary that a house or place wherein spirituous liquors were sold or bartered, &c., without license, in a less quantity than a gallon, &c., should he kept in a disorderly manner, in order to make it a nuisance.</p> <p>Information, under said act, alleging that the defendant, on, &c., at, &e., not being licensed to vend spirituous liquors by retail, did keep, &c., a certain house, wherein spirituous liquors were sold, &c., in less quantities, &c., in disorderly manner, constituting a public nuisance, &e. The affidavit did not allege that the house was kept in a disorderly manner. Held, on motion to quash, that the variance was immaterial.</p> <p>The 15th section of said act does not limit the provisions of the act, in regard to nuisances, to licensed houses, but extends them to such houses.</p> <p>An information, under the K. S. 1852, for maintaining a nuisance, need not describe the precise locality of the nuisance.</p> <p>Section 9 of the act for the punishment of misdemeanors, (2 R. S. 1852, p. 429,) allows the Court to order the removal of a nuisance or not, at its discretion; and, in case of such order, which must always be based upon the testimony given at the trial, the Court is competent to make the direction for its removal specific enough to guide'the officer in the discharge of his duty.</p> <p>A motion in arrest of judgment will not lie for the improper admission or exclusion of evidence nor for the improper giving or refusal of instructions.</p>

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

<p>If at a sale of land upon execution, the execution-plaintiff, by fraudulently representing that he is buying for the purpose of allowing the defendant to redeem, prevents competition, and purchases the land at a price greatly below its value, the defendant may have the sale set aside.</p> <p>Where there are judgments of different dates against a debtor, in favor of the same creditor, he has a right to apply any voluntary payment to whichever judgment he chooses.</p> <p>Where evidence was necessary to authorize a judgment of the Circuit Court, it will be presumed, in the absence of a bill of exceptions disclosing the contrary, that the Court proceeded upon proper evidence.</p>

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

<p>In an affidavit for a writ of replevin, before a justice of the peace, under the E. S. 1843, it was not necessary to allege that the property sought to be replevied had not been taken for any tax or assessment against the plaintiff, nor seized under any execution or attachment against his goods.</p>

<p>A party -waives his objections to instructions by not excepting to them.</p> <p>By omitting to except to the refusal of instructions, a party will be treated as having acquiesced in the refusal.</p> <p>To make a ruling of the Circuit Court the subject of review in the Supreme Court, it must have been excepted to when it was made.</p> <p>A motion in arrest of judgment is an affirmance of the verdict, and a motion for a new trial can not afterwards he entertained, unless the cause upon which it is founded was discovered after the motion in arrest was made.</p> <p>Where no exception has been taken to the admission of evidence in the Court below, its admissibility will not he examined in the Supreme Court.</p>

<p>The owner of a chattel can not maintain an action to recover the possession against one who has purchased it bona fide from a wrongful taker, until he lias made a demand for its return.</p> <p>Action hy A. against B. and C. to recover possession of a horse. The complaint alleged that the horse was wrongfully taken by B., and wrongfully detained hy B. and C. B. answered, denying the wrongful taking and de. tention, and'averring that he sold the property in good faith to C., and that it was G.’s property. G. answered, denying the wrongful detention, and alleging the horse to he his propSrty, &c. Held, that B. was a competent W'itness for G. on the trial; but to what extent he might ho allowed to testify was not decided.</p>

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

<p>An agreement of a creditor with the principal debtor to delay the collection of the debt, must be founded on a consideration in order to discharge the sureties.</p> <p>The language of a bond was as follows: “We or either of us promise to pay the state of Indiana, for the use of the surplus revenue fund,” &c., “on or before the 23d day of January, 1846, 100 dollars, with interest thereon at the rate of 7 per cent, per annum, payable in advance, commencing even date herewith, and do agree that in case of a failure to pay any instalment of interest, the said principal sum shall become due and collectable, together with all arrears of interest; and on failure to pay the principal or interest when due, 5 per cent, damages on the whole sum due shall be collected and costs. In testimony,” &e. Held, that it plainly appeared that though the bond was to be due one year from date, yet that it was the intention of the parties that further time might be given upon payment of the annual interest.</p>

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

<p>Where a party has moved in arrest of judgment, he can not afterwards take the opinion of the Court on the sufficiency of the evidence on a motion for a new trial.</p> <p>Where the record does not profess to contain all the evidence, it will he presumed that there was sufficient to support the judgment.</p>

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

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

<p>EKROK, to the Marion Circuit Court.</p>

<p>It is incumbent upon tlie party asking for a new trial on account of newly discovered evidence, to show, 1. That it has come to his knowledge since the trial; 2. That it was not owing to a want of diligence that he did not know it sooner; and 3. That it would probably produce a different result.</p> <p>Where a party asks for a new trial on the ground of newly discovered evidence, he must set forth in his bill of exceptions the testimony which was submitted to the jury, so as to enable the appellate Court to judge whether the result would be changed by the new testimony, or whether the testimony would be merely cumulative.</p> <p>A new trial will not be granted to allow the introduction of merely cumulative testimony.</p> <p>The Supreme Court will presume that a new trial was properly refused by the Court which tried the cause, when the record does not show the contrary.</p>

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

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

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

<p>Indictment, charging the prisoner, Thomas Kennedy, with murder in the first degree. Verdict, “We, the jury, do say and find that Thomas Kennedy is guilty, in manner and form as he stands charged in the indictment, and that he shall be imprisoned in the state prison, and kept at hard labor during life.” The act of 1843, in force when the verdict was rendered, provided, that upon an indictment for murder in the first degree, the jury might find the defendant not guilty of the crime in the degree charged in the indictment, and might find him guilty of such murder in the second degree; or they might find him guilty of manslaughter. Held, that the verdict showed, with sufficient certainty, that the prisoner was found guilty of murder in the first degree.</p> <p>When, under the act in question, the jury, under a single count charging murder in the first degree, find the prisoner guilty of murder in the second degree, the verdict should specifically name the offence of which he is found guilty.</p>

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

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

<p>The prisoner, indicted for arson in the Marion Circuit Court, applied for a continuance of the cause, to procure the testimony of a witness residing in Cincinnati to his good character. Twenty-one days had elapsed between the period of the prisoner’s arrest under the indictment and the application for the continuance, and he had meanwhile made no effort to obtain the testimony. There is a communication, twice a day, between Indianapolis, the county-seat of Marion county, and Cincinnati, by railroad. Held, that the application was properly refused.</p> <p>The Court is charged with the duty of giving the law to the jury in criminal as well as in civil cases, though in the former the jury are the judges of the law and the fact.</p> <p>It is not error for the Court, on the trial of a criminal prosecution, to refuse to permit counsel to read from law books in their argument to the jury. ></p> <p>After the conviction of a prisoner for arson, in setting fire to a building in Indianapolis, he moved for a new trial, to enable him to prove an alibi by one A., who had not been examined as a witness. The affidavit stated that the prisoner bad slept with A., on the night the building was burned, in Indianapolis, &c. It admitted that the prisoner remembered the fact distinctly before the trial, but alleged that he had forgotten A.’s name, and had, therefore, made no effort to obtain his testimony. Held, that the Court correctly overruled the motion.</p>

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

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

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

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

<p>In a cause tried since the R. S. 1852 took effect, a motion for a new trial, which is not in writing, can not be noticed.</p> <p>Where the issues of fact in a cause are submitted to the Court for trial, either party may require the Court to make a special statement of the facts and the questions of law decided thereon; and by then excepting to the decision, such party may properly prepare the case for review in the Supreme Court.</p>

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

<p>A clerk of the Circuit Court elected to supply a vacancy, under the constitution of 1851, holds his office for the Ml term of four years from the period of his election.</p> <p>Section 7, of chapter 115, 1 B. S. 1852, p. 512, so far as it assumes to regulate or abridge the term of office of persons elected to the office of clerk of the Circuit Court, where vacancies have occurred, is in conflict -with the provisions of the constitution on that subject and void.</p>

<p>So much of the act “to prohibit the manufacture and sale of spirituous and intoxicating liquors,” &c., approved February 16, 1855, as is prohibitory of the right to manufacture such liquors, and also so much thereof as relates</p> <p>I to the establishment of agencies and the appointment of agents to sell such liquors, is unconstitutional and void.</p>