Volume 7 — Blackford's Indiana Reports

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

<p>The heirs of a mortgagee, or, in case of their non-residence, the executor or administrator of the mortgagee, may sustain ejectment for the mortgaged premises against the mortgagor, or his tenant claiming under a lease granted after the mortgage without the privity of the mortgagee.</p> <p>And the suit, in such case, may be brought without a demand of possession.</p>

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

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

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

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

<p>A count on an instrument of writing by which the defendant acknowledged he had received, by the hand of J. S., 200 dollars in favour of the plaintiffs, is insufficient.</p> <p>It is necessary to the admission of evidence of what a deceased witness swore to on a former trial, that it be proved by the record of that trial that the suit was between the same parties and for the same cause of action. And the precise words of the deceased witness, and not merely the substance of them, must be proved.</p>

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

<p>On a trial of the right of property in goods taken in execution, the claimant cannot recover unless he prove himself entitled to the immediate possession of the goods.</p>

<p>If on an indictment against two persons, one of them be tried separately, the record, by showing that the prisoner was separately tried, necessarily shows that the Court directed the trial.</p> <p>If the record of a criminal case show that in the course of the trial, the Court had, on an adjournment from one day till the next, placed the jury in the charge of a bailiff, it will be presumed that the jury was committed to his care in a legal manner, whatever that may be.</p> <p>A count in an indictment for murder stated, that the defendant made an assault on one G. B., and that the defendant with a certain axe, &c., the said G. B., in and upon the left side of the head and over the left temple of him the said G. B., then and there feloniously and wilfully and of his malice aforethought did strike and beat, giving to the said G. B. then and there with the axe aforesaid, in and upon the right side of the head of him the said G. B., and over the right temple of him the said G. B., one mortal wound, &c., of which said mortal wound the said G. B., &c., on, &c., died, and so the jurors aforesaid, upon their oath aforesaid, do say, &c. Held, that the count, in the description of the offence, was repugnant and inconsistent with itself in a material part, and was void.</p> <p>Such count must state the part of the body to which the violence was applied; but the proof need not correspond with the statement.</p> <p>If an allegation in such count be -sensible, and consistent in the place where it occurs, and be not repugnant to antecedent matter, it cannot be rejected as surplusage, although it be repugnant to a subsequent allegation.</p> <p>An objection to such count for repugnancy in the description of the offence, cannot be removed by striking out the allegation which is inconsistent with a previous one, unless, after striking out the subsequent allegation, a legal description of the offence will still remain.</p> <p>In an indictment for murder, where the death is alleged to have been caused by a wound, it is not necessary to describe the depth or breadth of the wound.</p> <p>An indictment in such case concluded as follows: “And so the jurors aforesaid upon their oath aforesaid do say, that the said S. D., (the prisoner,) in manner and form aforesaid, feloniously and wilfully and of his malice aforethought did kill and murder, contrary to the form of the statute,” &c. Held, that this conclusion was insufficient, for not designating the person murdered.</p> <p>Although an indictment charge that the defendant feloniously and wilfully and of his malice aforethought did strike the deceased, &c., giving him, &c., a mortal wound, &c., yet if it do not contain the technical allegation that the defendant feloniously murdered the deceased, it is an indictment for manslaughter only and not for murder — the word murder being a term of art which cannot be supplied in an indictment by any other word.</p> <p>A verdict against the defendant in manslaughter must fix the punishment.</p>

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

<p>Debt by the state, on the relation of the board of county commissioners, &c., on the official bond of a county agent, against Polke and Vanpelt. Plea, that the bond -was executed by the agent, with Polke, Evans, and Burnside, sureties, and was delivered to the board of county commissioners; that, afterwards, the commissioners, while the bond was under their control, caused the name of Evans to be erased from the same, and that of Vanpelt added thereto, without the knowledge or consent of Polke or Burnside.</p> <p>Held, that the plea was good.</p>

— The plea in this case shows, that the levy on the real estate and the appraisement were made in 1841, when such estate could not be sold on execution for less than one-half of its appraised value.

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

<p>Debt by the state, on the relation, &c., on a justice’s bond against him and his surety. Plea, general performance. Replication, assigning as a breach the justice’s failure to pay over money collected. Rejoinder, that the.relator had recovered a judgment against the justice for the same money. Held, that the rejoinder was a departure. Held, also, that such judgment, unless satisfied, was no bar to a suit on the bond against the justice and his surety. Held, also, that though the justice’s bond was.oonditioned for the payment, on demand, of the money collected, a general averment in the replication of non-payment although often demanded, was sufficient on general demurrer.</p> <p>A judgment against one defendant, in an action on contract against two, is erroneous, unless there be a suggestion of “not found” as to the other.</p>

<p>An indorsement in blank by a third person of a promissory note, negotiable, &e., made at the date of the note, does not, of itself, render the indorser liable, as a maker, to the payee.</p> <p>But as the indorsement may be made under such circumstances as to render him so liable, a note thus indorsed is admissible evidence in a suit by the payee against such indorser and the maker, as joint makers, as a link in the chain of the plaintiff’s evidence.</p>

<p>A bond sued on was described in the declaration as payable to “ The President and Trustees of the Town of Fort Wayne. ” The bond shown on oyer was payable to “The President and Trustees of the Fort Wayne corporation.” Held, that the variance was fatal.</p> <p>A corporation suing in its true name, on a bond executed to it by a wrong name, should aver in the declaration that the defendant bound himself to the plaintiff by the name contained in the bond.</p> <p>The corporation of “ The President and Trustees of the Town of Fort Wayne,” is merged in the corporation of “The City of Fort Wayne;” a bond executed to the former corporation is transferred to and vested in the latter; and a suit on such bond should be brought in the name of “ The City of Fort Wayne,’’'1 ’</p>

<p>In trover commenced in the Circuit Court, when the demand does not exceed 50 dollars, the plaintiff, though he recover, must pay the costs.</p>

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

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

<p>Duffield brought an action of debt against M'Henry, Tilford, and Ratts. The first count was on an instrument of writing by which, as alleged, the defendants acknowledged themselves to be indebted to the plaintiff in a certain sum of money, on settlement, in full for joiner’s work of the New Washington Seminary. The second count was founded on an instrument of writing in the following words : “ Jlpril 6th, 1842. Due John H. Duffield, on settlement, the sum of 239 dollars in full for the joiner’s work of the New Washington Seminary. (Signed) James M'-Henry, R. Tilford, F. Ratts, Building Comm., in behalf of the Trustees of the New Washington Seminary.'1'1 Held, that such an instrument of writing as that set out in the second count, did not sustain the first count; and that the second count showed no cause of action against the defendants. Held, also, that if the defendants were authorized to execute the instrument for the trustees, the suit should have been against the trustees ; and if the defendants were not so authorized, they were liable in an action on the case for acting in the matter without authority.</p>

<p>In debt against a constable on his official bond for a false return of a fieri facias, the execution-defendant cannot be objected to as a witness for the plaintiff on the ground of his being interested.</p> <p>¿-1. executed a bond for the delivery of goods taken on an execution against B., which goods were afterwards, on ¿Us claim, adjudged to be his, and were therefore not delivered according to the condition of the bond. Held, that in a suit by C. against the officer for a false return of the execution, ¿Us execution of the delivery-bond, (he having been discharged from it by said adjudication,) did not render him incompetent as a witness for either party.</p> <p>If the goods on which an execution is levied be taken from the officer by a judgment in favour of the claimant, on a trial of the right of property, the judgment is conclusive, as to the right of that property, in a suit against the officer for a false return of the execution.</p> <p>If a constable fail to levy an execution on goods which might have been levied on, the value of the goods with interest and ten per cent., is, in a suit for such failure, the measure of the plaintiff’s damages.</p>

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

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

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

<p>It is perjury to swear falsely to a material point in an affidavit for the continuance of a cause.</p> <p>If an indictment for perjury show that the false matter sworn to was material to the question before the Court, an express allegation of its materiality is unnecessary.</p>

<p>A constable having in his hands n fi. fa., issued under the statute of 1842, may, on finding no goods on which to levy, return the execution before the return-day.</p>

<p>A bill of review containing no equity on its face, must, on .final hearing, be dismissed.</p> <p>A bill of review can be brought only in two cases; one, for error in the record, the other, on account of new matter discovered since the decree, or, at least, since the publication of the testimony.</p> <p>A defendant to a bill in equity, having negligently suffered a decree to go against him by default, cannot allege his own negligence in support of a bill of review.</p> <p>If a defendant in equity knew of certain facts necessary to his defence, before the rendition of a decree against him, he cannot support a bill of review by alleging that he has, since the decree, discovered certain evidence of - those facts, without showing that he could not prove them by other testimony.</p> <p>The statute of limitations may be relied on in bar of a bill of review.</p>

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

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

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

<p>Assumpsit. The issues were whether a note, pleaded as a set-off, had been discharged by an accord and satisfaction, or in any other manner. The Court instructed the jury that if the note was, for value, surrendered to the plaintiff with a promise by him to account for the proceeds of it, the promise to account was the only proper subject of set-off in the cause. Held, that the instruction was erroneous.</p>

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

<p>A widow cannot mortgage her dower until it be assigned to her.</p>

<p>The declaration, in a suit by the state on the relation of a school-commissioner, alleged, under a videlicet, that the relator was appointed such commissioner on a certain day. Plea, that the relator was not appointed on that day. Held, that the plea was bad as tendering an immaterial issue.</p> <p>A school-commissioner may be the relator in an action, founded on the bond of his predecessor, for the non-payment by the latter to his successor of the school-funds in his hands at the expiration of his office.</p> <p>The declaration in such suit need not aver a special demand on the ex-commissioner to pay over the funds to his successor.</p>

<p>An information in the nature of quo warranto, under the statute, for usurping, &e. an office, should be exhibited by the prosecuting attorney, and should commence as follows: ./2. B., prosecuting attorney of the-judicial circuit of the state of Indiana, comes here into the Circuit Court of the county of-, on, &c., and for the said state, on the relation of C. D., of, &c., according to the form of the statute in such case made and ■ provided, gives the Court here to understand and be informed, &c.</p>

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

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

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

<p>To a declaration in trespass charging that the defendant assaulted, seized, violently pulled and dragged about, struck, and imprisoned the plaintiff, a plea justifying the arrest and imprisonment by virtue of legal process, is bad.</p> <p>The plea in such case should show that the acts of violence were rendered necessary by the resistance of the plaintiff.</p> <p>A capias ad respondendum issued by a justice of the peace, without an affidavit, against a person not a resident and householder of his county, operates as a summons, and does not justify an arrest and imprisonment.</p> <p>A party who causes a magistrate to issue, and the magistrate who issues, legal process, are not responsible for the unlawful manner of serving it, unless they participate in the unlawful act.</p>

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

<p>When the surety of a guardian becomes dissatisfied, and applies to be discharged from further responsibility, and a further bond with additional surety is thereupon given for the performance of the condition of the former bond, the surety in the new bond is liable for the previous as well as subsequent defalcations of the guardian.</p> <p>In debt on a bond with a condition, the judgment for the plaintiff was for the penalty, and also for the damages assessed and costs. Held, that that part of the judgment which was for the damages assessed, was erroneous.</p>

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

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

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

<p>A person indicted for an offence created by statute, cannot be convicted after a repeal of the statute, unless the repealing statute contain a saving clause, &c.</p>

<p>Suit against the maker of a sealed note for the payment of money, brought by V. as assignee of M., who was assignee of B. the payee. Plea of payment to the payee before notice of his assignment to M., claiming as set-offs certain notes of B., one of which was payable to the defendant, and the others were assigned to him. Replication, that the defendant had notice, &c.</p> <p>Held, that the notes and assignments mentioned in the plea might be read in evidence by the defendant. Held, also, that evidence offered by the defendant, that M. transferred the note declared on to W. by a blank indorsement, that W., without indorsing it, transferred it to T., that the latter transferred it by delivery to B., who in the same manner transferred it to the plaintiff, who, before the maturity of the note, filled up the blank indorsement to himself, — was inadmissible under the issue.</p>

<p>The assignee of a note cannot resort to a Court of chancery for relief against the assignor on account of the maker’s insolvency, if there be no fraud in the assignment.</p> <p>If an answer in chancery be put in issue by a replication, no part of the answer can be read by the defendant as evidence in his favour, except so much as may qualify or explain the meaning of some passage in the answer read in evidence by the complainant.</p> <p>A bill of foreclosure and for a sale of mortgaged premises, averred that the mortgage was given to secure the payment of a certain promissory note. The answer admitted the execution of the note and mortgage, but alleged that judgment had been obtained on the note, and that the defendant had paid the judgment. A general replication was filed. Held, that the admission in the answer of the execution of the note and mortgage, was evidence against the defendant, but that the subsequent allegation of payment being a new and distinct fact, was not evidence in his favour.</p>

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

<p>A plea, apparently good on its face, cannot be set aside upon an affidavit that it is false.</p>

<p>jn an acti0n for the price of goods sold with a warranty, fraud in the sale is a g00^ defence under the general issue, though there may have been no violation of the warranty.</p> <p>A wilful and fraudulent representation by the seller of a fire-engine, that it was as good as another designated engine, is not fraud in law on the buyer, if the latter was not deceived or misled by the representation.</p> <p>' A warranty that a fire-engine sold and delivered would perform as well as any other in the western country, is not to be considered violated because the warranted engine is inferior to others in that country much larger and - more costly, if the inferiority be evident to a common observer.</p> <p>If the defendant give notice that he will take depositions in another state, before a certain justice, at a specified time and placo, and the plaintiff give notice that he will also take depositions before the same justice at the same time and place, and both parties attend and take depositions accordingly without objection, — the defendant cannot afterwards object in Court that the notice to him was insufficient; nor is the want of a dedimus, in such case, on the plaintiff’s part, an objection to his depositions.</p>

<p>An action for money had and received lies to recover the excess of interest paid on a usurious contract.</p> <p>In such suit against the state bank, the plaintiff proved that the bank had discounted several notes for him, and retained, under the name of exchange, a certain sum over and above legal interest; that the bank had discounted other notes for the plaintiff, during several years, after those charged with exchange were payable; and that the plaintiff’s bank account was balanced. Held, that it might be inferred that the notes charged with exchange were paid. Held, also, that the retaining said sum over and above legal interest, as exchange, was usury.</p> <p>The plaintiff in such suit offered in evidence a copy of so much of the discount book of the bank, as showed the usury complained of; the original not being produced on notice. The clerk of the bank, who had made the copy on the plaintiff’s application, testified, that, having made it in a hurry, he could not be certain as to its accuracy. Held, that the copy was legal evidence.</p> <p>The pleas in such suit were the general issue and the statute of limitations. After the trial was commenced, the cause, by consent, was withdrawn from the jury and submitted to the Court; the parties agreeing that the only issue should be, whether the defendant had received usurious interest from the plaintiff, and how much. Held, that, by the agreement, the defendant had waived the plea of the statute of limitations.</p>

<p>A declaration in trespass for cutting down and carrying away the plaintiff’s trees is good, without an averment that the land where the trees were growing belonged to the plaintiff.</p> <p>A license, in such case, cannot be given in evidence under the general issue, but must be specially pleaded.</p> <p>If the Court charge the jury erroneously, but afterwards correct the mistake by giving a legal charge on the subject, there is no error.</p>

<p>Scire facias to have execution in the Circuit Court on a justice’s transcript. The writ alleged the recovery of a judgment by the plaintiff against the defendant before a justice of the peace for a certain sum, the issuing of a fieri facias on the judgment, and a return of the execution nulla bona. It stated, also, that the justice afterwards filed in the Circuit Court a certified transcript of the judgment and proceedings, and that the transcript was recorded and filed in that Court. Held, that the averment that the transcript had been recorded was immaterial; that a plea, therefore, denying that the transcript had been filed and recorded was bad; and that the plea should have denied only so much of the averment as states that the transcript had been filed.</p> <p>The defendant cannot, in such caso, deny the truth of the constable’s return . of nulla bona.</p> <p>If the transcript of the justice in such case states, that the writ in the suit was returned by the constable as served on the defendant, that statement is, at all events, prima facie evidence of the due service of the writ.</p>

<p>Debt on a sealed note. Pleas, 1. Mil debet; 2. That the note was given without any good or valuable consideration; 3. That the note was givon by the defendant, who was the administrator of one A., deceased, to the plaintiff in consideration of a debt which A., at the time of his death, owed the plaintiff, and for no other consideration. Replication to the second plea, that the consideration had not failed in manner and form, &c. Held, that the first and third pleas were bad, and the replication good.</p>

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

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

<p>The words, “You hooked my geese,” are not actionable in themselves.</p> <p>Words not actionable in themselves may express a criminal charge, by reason of their allusion to some extrinsic fact, or of their being used and understood in a different sense from their natural meaning, and thus become actionable.</p> <p>An innuendo cannot change the ordinary meaning of language.</p>

<p>Jl. and B. agreed under seal that ./2. should sell and convey certain real estate to B., for which the vendor was to receive a certain sum, &c., when there should be made to the purchaser a good and sufficient deed for the property. Held, that this contract meant that Jl. himself should execute the deed. Held, also, that B.’s subsequent consent by parol to accept a deed for the property executed by a third person, and ^2.’s tender of such deed to B., did not authorize «2., in case of non-payment, to sue B. on the original contract.</p>

<p>Two counts in debt. To the first, which was on a promissory note given in 184), with interest at ten per cent, per ann., the defendant pleaded, that, on, &c., he bought of one B. a certain lot of ground for 1,000 dollars, and executed to him therefor two notes of 500 dollars each, with interest at six per cent, per ann., taking from B. a bond conditioned for a conveyance for the lot on request; that B. assigned the notes to the plaintiff, which, at the plaintiff’s request, and not upon any valuable consideration, the defendant took up, and gave the note in said count mentioned, and another for-; and that B. had no title to the lot.</p> <p>To so much of the interest on the note described in the first count as exceeds six per cent, per ann., the defendant pleaded that he executed two notes of 500 dollars each, at six per cent, per ann. interest, to one B. for a certain lot of ground; that B. assigned the notes to the plaintiff; and that, on, &c., in 1841, the defendant, at the plaintiff’s request, and not upon any valuable consideration, took up said notes, and gave the note in said count mentioned, and another for-; they being for the balance due on the assigned notes.</p> <p>Held, that both said pleas were bad.</p> <p>The second count was on a promissory note given in 1842, with interest at _ ten per cent, per ann. Held, on demurrer to this count, that so much of the second section of the act of 1838 regulating interest, as allowed more than six per cent, per ann., was repealed by an act of 1842; that the note described in said count, which was given after such repeal, was usurious and void; and that the count was therefore bad.</p>

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

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

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

<p>Suit on a written promise by the defendant to assign to the plaintiff a note on a third person. Held, that parol evidence tending to show that the assignment was to be without recourse, was inadmissible.</p>

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

<p>The Supreme Court has no jurisdiction in any case commenced before a justice of the peace, where the amount in controversy in the Supreme Court, exclusive of interest and costs, is less than twenty dollars.</p>

<p>Covenant on a sealed note brought by an assignee against the maker. Pleas, 1. Failure of consideration, without showing what the consideration was, and how it had failed; 3. That the note was given in part consideration of a deed made by the payee of the note, by which he sold the defendant the exclusive right of making, &c., an alleged new and useful improvement in the machine for steaming and renovating feathers, for which a patent had been granted, &c.; that the payee of the note had no authority to sell, &c., because the assignment of the patent to him by the assignee of the patentee had not been recorded, &c„; 4. That the payee of the note warranted that said machine would greatly improve old feathers, &c., when in truth it.does not improve them, &c. 5. The same as the 4th, with the additional averment that the payee of the note knew that the machine would not improve old feathers, &c.', and that by means of said false representations the defendant was induced to purchase the machine. Held, that the 1st, 4th, and 5th pleas were bad, and that the 3d was good.</p>

<p>An execution issued by a justice of the peace, reciting a judgment for 102 dollars and 36 cents, without showing how much of the judgment was for the debt, and how much for interest thereon, was held not to be void.</p> <p>It will be presumed that the justice, in rendering such judgment, was acting within his jurisdiction.</p>

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

<p>Where a person enters into possession of real estate under a.contract of sale, the vendor may, at any time previously to executing the conveyance, demand possession of the premises, and may also, if the demand be not complied with, recover the possession of them in an action of ejectment.</p> <p>The statute concerning tenants holding over, which requires three months’ notice to quit, is not applicable to the above-named case, there being in that case no tenancy in which rent was reserved.</p>

<p>A constable, appointed by a justice of the pe.ace to levy an execution on the goods of A,, levied the same on the goods of B. A trial of the right of property was claimed by B., who gave bond, See., but the constable refused to deliver the goods to B. Held, that, for this misconduct of the constable, the justice was liable to B. in an action on the case.</p> <p>The jury in such case may, though the constable tender the property to the plaintiff before suit brought, give the value of the property as the amount of the damages.</p>

<p>If two persons make a promissory note, and one of them afterwards obtain possession of the note as his own property from the payee, the note is dis■charged.</p>

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

<p>Notice in a newspaper to a non-resident defendant in a bill in chancery, to appear before the Circuit Court of the proper county on the first day of its next term, is sufficiently certain as to the time and place of appearance.</p>

<p>Debt on a sealed note for the payme'nt of money. Plea, that the consideration of the note was certain land (describing it) belonging to one an infant; that at the time the note was given, the land was sold at private sale to the defendant by one B., a commissioner appointed by the Probate Court for that purpose; that three notes were given by the defendant for the payment of the purchase-money by instalments, on one of which notes, being the one last due, this suit is founded; that at the time the notes were given, B., as commissioner as aforesaid, executed his bond obligating him- . self to convey all the right and title of said Ji. in said land to the defendant, on payment of the purchase-money, provided the sale should be confirmed, but if set aside, the notes were to be returned to the defendant; that B. has not made or tendered, nor offered to make or tender to defendant a conveyance for the land either absolutely or conditionally, or otherwise, but has hitherto failed to do so; that he cannot make such conveyance, and the consideration of the note has therefore failed, &c. Held, that the plea was good.</p>

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

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

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

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

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

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

<p>A vendor’s lien on real estate for unpaid purchase-money may be enforced against a purchaser from the vendee with notice.</p> <p>If an allegation in a bill in chancery be denied by the answer, the allegation must be proved by two witnesses, or by one witness and corroborating circumstances.</p> <p>If a distinct fact in avoidance be set up by an answer in chancery, such fact must be proved.</p>

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

<p>An indictment for arson should allege the value of the property destroyed.</p> <p>It should also allege that the property burned or sot on fire belonged to the person in actual possession in his own right.</p>

<p>In ejectment against a trespasser, notice to quit need not be proved.</p> <p>The declaration in such action may be amended, as to the date of the demise, at any time before verdict, provided the amendment do not injure or impose any hardship on the defendant.</p>

<p>/Although the admission of an individual member of a firm that he is a partner, is evidence to charge himself, it is no evidence of the partnership ^ against any other party.</p> <p>Assumpsit against Jl., B., and C., as partners. JL. pleaded non assumpsit; B. appeared and suffered judgment by nil dicit; and the writ was returned “ not found” as to C. Meld, that on the trial of the issue between the plaintiff and Jl., the admissions of B. of the existence of the partnership of JL., B., and C., were inadmissible.</p> <p>The existence of a partnership, like most other facts, may be proved by one witness; but it is otherwise as to the proof necessary to support an indictment for perjury. To sustain such an indictment, two witnesses, or one witness and corroborating circumstances, are indispensable.</p>

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

<p>A note for the payment of money, and a mortgage on real estate to secure its payment, were assigned, and the assignee obtained judgment at law on the note against the maker. The mortgaged premises were afterwards sold on execution on the judgment to the judgment-creditor. Held, that the purchase was a discharge of the judgment to the value of the mortgaged premises. •</p>

<p>The subscribing witnesses to a deed are the proper persons to prove its execution, if they are within the j urisdiotion of the Court and competent to testify. .</p> <p>If real estate occupied by a tenant he sold, the vendee is entitled to the rents which accrue after the sale, unless they have been paid, before notice of the sale, to the vendor.</p>

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

<p>The joinder of counts for separate felonies in an indictment, is a good cause for quashing the indictment on motion made before pleading to issue. But the refusal of the Court in such case after plea, to compel the prosecuting attorney to elect on which count he will proceed, is not error.</p> <p>A caption of an indictment which shows the indictment to have been found by a grand jury at a Circuit Court held, at, &c., on, &c., is sufficient. It need not specify the qualifications of the jurors, nor allege them to be good and lawful men.</p> <p>If a person has been once put on his defence on a legal indictment before a competent jury, and the jury has been unnecessarily discharged, such discharge is equivalent to an acquittal of the defendant.</p> <p>A verdict finding the defendant guilty on one of several counts of an indictment, and saying nothing of the other counts, is, as to such other counts, equivalent to an express finding of not guilty. A judgment may be rendered on such verdict; and the proceedings will be a bar to a future prosecution for any of the offences charged in the indictment.</p> <p>The entry, after such judgment, of a nolle prosequi of the counts concerning which the verdict is silent, is a nullity.</p> <p>If the description of rape in an indictment leave out the word “ unlawfully,” but be in accordance with the common law definition of the offence, it is sufficient.</p> <p>A new trial may be granted to a defendant in any criminal case.</p> <p>A witness cannot be impeached on the ground that he had made previous statements inconsistent with his testimony, until he has been asked whether he had made such statements.</p> <p>The refusal of the Circuit Court to grant a new trial, where the- question depends merely on the credibility of a witness, will not be considered erroneous.</p>

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

<p>The granting of a new trial — the record showing no good cause for or against it — is not error.</p> <p>A defendant cannot plead in abatement on account of a variance between the declaration and the writ, without craving oyer of the writ and reciting it in his plea.</p>

<p>In slander the jury cannot, in assessing the damages, take into consideration evidence of the defendant’s having spoken, since the commencement of the suit, the same words as those laid in the declaration.</p>

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

<p>A plea to a scire facias on a recognizance, of a former judgment in the same cause of action, must show what the defence in the first action was, and that it involved the merits of the case.</p> <p>Averments in such scire facias, that the recognizance was filed in the clerk’s office on a certain day and was then recorded, and that it was afterwards, on a different day, filed and recorded in open Court, are not repugnant.</p> <p>The scire facias in such case averred, that the recognizance was taken by the president judge of the third judicial circuit at South Hanover in that circuit. The recognizance, which was set out in hmc verba in the scire facias, did not show where it was taken. Held, that there was no variance.</p> <p>A president judge could not, under the statute of 1838, take a recognizance, out of Court, returnable to a Circuit Court out of the county in which it was taken.</p>

<p>In estimating the amount of damages for land taken in constructing the Central canal, the value of the land at the time it was taken, and how much the complainant’s land adjoining that taken had, at the same time, been increased in value by the location of the canal, should be taken into consideration.</p> <p>And, also, in ascertaining the amount of such damages, either party may show how the canal was progressing when the land was taken, and what appropriations of money had then been made for the completion of the canal.</p>

<p>A mortgagee in fee of real estate lias the legal title to the estate, and the same right to transfer it by deed that he has to convey by deed the legal title of any other real estate. Indeed, as the statute is understood to require conveyances of land to be by deed, the legal title of such mortgagee can be conveyed by him to a purchaser in no other way than by deed.</p> <p>Ejectment by the lessee of B. ¡71, a mortgagee in fee, against the mortgagor. The defendant, to prove the title out of the lessor, introduced the following deed : “ Know all men by these presents that I, B. T., of, &c., fo,r and in consideration of the sum of 1,200 dollars to me secured, have granted, bargained, sold, assigned, and transferred, and do, by these presents, grant, bargain, sell, assign, and transfer, to J. G. and S. M. all my right, claim, and interest, in and to a certain mortgage and the premises therein described, made and executed to me by J. L. G. on, &e., to secure to me the payment of 1,400 dollars with interest, &c. And I hereby authorize and empower the said J. G. and S. M. to prosecute in my name all suits now commenced by me, or to begin and prosecute to final judgment any and all suits in my name which they may deem necessary, in and about the collection of the 1,400 dollars and the interest thereon accrued, or which may hereafter accrue, (they being responsible for all costs, expenses, &c,;) and they, said J. G. and S. M., are hereby fully authorized and empowered to order, direct, and control, the said mortgage and the collection of the money thereby secured, (in my name and for their use and benefit,) to all intents and purposes, as fully and amply as I might and could do myself, and to receive and receipt for the same, hereby ratifying and confirming whatsoever the said J. G. and S. M. shall and may lawfully do in the premises. Witness my hand and seal this first of March, 1841. — B. T. (seal.)” It appeared that when this deed was executed, notes were given for the purchase-money, and that the mortgage referred to in said deed was the same with the mortgage relied on by the plaintiff Meld, that this instrument was a deed of bargain and sale of the mortgaged premises which passed the use to the bargainees, and that the statute of uses transfeired to them the possession.</p> <p>Meld, also, that said deed authorized the bargainees to collect the mortgage-debt for their own use in the name of the bargainor.</p> <p>The English statute requiring deeds of bargain and sale to be enrolled, is not in force in this state.</p> <p>Such deeds, under our statute, are valid between the parties without being acknowledged or recorded.</p> <p>A separation of the legal title to mortgaged premises from the claim at law to the mortgage-debt frequently occurs ; but if at any time before foreclosure the mortgagor or his assignee pay Iho debt, he is entitled to the legal estate.</p>

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

<p>If a purchaser of real estate from A. pay the purchase-money, receive a title-bond conditioned for a conveyance at a future time, and be put into possession, and a subsequent purchaser from .2. with notice get possession after-wards, an assignee of the title-bond may, in equity, recover the possession from such subsequent purchaser.</p>

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

<p>A dormant partner need not be joined in a bill in equity to enforce a contract against a person who dealt only with the ostensible partner.</p> <p>A mechanic’s lien for work done is not waived by taking his employer’s note for the money due for the work, and' giving a receipt in full for such money, the note not being paid.</p> <p>Where a mechanic gives credit for work done, notice of his intention to hold a lien may be filed in the recorder’s office within sixty days from the time the credit expired.</p>

<p>A probate judge could not, in 1842, take a recognizance returnable to a Court out of his county.</p>

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

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

<p>If, by an agreement between two persons, one agrees to furnish a specified sum of money to carry on a certain business of the parties, and afterwards fails to furnish the money, he is liable to the other at law for such breach of contract.</p> <p>An objection to an award returned to the Circuit Court, on account of its not . having been returned in time, is waived if not made in that Court. v If a suit pending in the Circuit Court be referred to arbitrators, and the parties agree that the award shall be made the judgment of the Court, judgment may be rendered on the award without a scire facias.</p>

<p>Debt lies oil a recognizance taken by a justice of the peace for the appear- . anee before him, on a subsequent day, of a person charged with an offence.</p> <p>And if the penalty be beyond a justice’s jurisdiction, the suit may be brought in the Circuit Court.</p> <p>The declaration in such case need not aver, that the recognizance was taken in consequence of a continuance by the justice of the examination of the person charged.</p> <p>A breach assigned in the declaration in such case, that the person charged did not appear before the justice, &e., and answer, &c., and abide the judgment of the justice thereon, is sufficient on general demurrer.</p>

<p>Courts of equity do not generally view time as being of the essence of a contract, unless it appear from the terms of the contract or the conduct of the parties, that it was the design of the parties to render it essential.</p> <p>The fact that the obligee of a bond conditioned for the conveyance of real estate, retains possession of the premises, destroys his right to rescind the contract on the ground of the obligor’s non-performance on his part.</p> <p>The vendor’s lien on real estate for. unpaid purchase-money passes to his assignee of a note for the money, and may be enforced by a suit in equity by such assignee against a purchaser from the vendee with notice.</p> <p>And the circumstance that the original vendor in such case had not a good title when he was to have conveyed, (the contract being unrescinded, and a good title having been obtained and tendered by him before the suit was commenced,) is not a sufficient defence.</p>

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

<p>A person indicted for an assault and battery with intent to murder, may be found guilty of a simple assault and battery.</p>

<p>A. cannot sustain a suit against B. for procuring another to sue him, A., unless the suit against A. was without cause.</p> <p>A witness is not liable to a suit for evidence given by him in a cause.</p>

<p>A person who owes money on different contracts, has a right to apply his payments to which of the debts he chooses ; but if he fail to elect, the creditor may make the application.</p> <p>The application of payments may be proved by circumstances as well as by words.</p>

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

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

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

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

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

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

<p>If, on oyer craved of a bond of which profert is made in the declaration, the bond cannot be produced, the declaration, by leave of the Court, should be amended by leaving out the profert, and inserting an excuse for not making it.</p> <p>In a suit by the state on the relation, &e., on a sheriff's bond, an assignment of a breach, that the sheriff had officially received money belonging to the relator, which he had failed to pay to him, &c., is insufficient: the relator’s right to the money should in such case be shown.</p> <p>An assignment of a breach in such suit, that the sheriff had sold land on execution to the relator and received from him the price; that the sale was afterwards set aside; and that the sheriff had refused to pay the money, on demand, to the relator, &c., is insufficient: an averment, that notice had been given to the sheriff that the sale had been set aside, is necessary in such case.</p> <p>It is no answer to an allegation that a sheriff's sale had been set aside, that the execution had not been set aside.</p>

<p>A purchaser of an equity of redemption of real estate cannot support an action of ejectment, commenced before the revised statutes of 1843, for the mortgaged premises, against a purchaser of them from the mortgagee.</p>

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

<p>Words charging a woman who was never married with having had a child and buried it in the garden, amount to a charge of fornication, and are therefore actionable by statute.</p> <p>In an action of slander brought in this state for such words, it will be presumed, until the contrary be proved, that the words were spoken in this state.</p> <p>When the words charged are prima facie actionable, no averment of extrinsic facts is necessary.</p>

<p>Jl. purchased at the land-office a tract of land, and took a duplicate receipt for the purchase-money, and then sold and assigned the certificate of purchase to B., retaining the duplicate receipt. Afterwards Jl., being in possession of the land, sold the same to C., and gave him a bond conditioned for a conveyance at a future time. Held, that ./Z.’s retaining the duplicate receipt, did-not affect jS.’s priority of claim to the land.</p>

<p>An appeal lies to the Circuit Court from the order of a board of county commissioners, leasing a part of the public square in a county seat for private purposes.</p> <p>When such an appeal is taken in vacation, a failure to summon one of the appellees to appear at the next term of the Circuit Court, is no cause for dismissing the appeal.</p>

<p>In an action at law, evidence of the state of unsettled partnership accounts between the parties is inadmissible.</p> <p>An entry, made by one of the parties to a suit in an account-book, cannot be proved by parol without accounting for the absence of the book.</p> <p>An offer, concession, or admission, made in the course of an ineffectual treaty of compromise, and constituting, in itself, the point yielded for the sake of peace, and not because it was just or true, is not competent evidence against the party making it; but the law is otherwise with regard to an independent fact admitted to be true, but not constituting Buch yielded point.</p> <p>If the plaintiff confess the plea of plene administravit, a judgment in his favour should be of assets quando acciderint.</p>

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

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

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

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

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

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

<p>The jurisdiction of the justices of the peace, under the act of 1838 concerning tenants holding over, is not limited as to the amount of damages.</p> <p>That statute only authorizes proceedings for the recovery of the possession of real estate, and damages for its detention. It has no relation to personal property.</p>

<p>If a constable having levied an execution on the debtor’s goods, refuse to permit him, he having a family, to retain 100 dollars’ worth thereof as exempt from execution, but sell the same on the execution, he may be sued in trespass.</p> <p>If objectionable testimony admitted by the Circuit Court, do not appear to have been objected to, it will be presumed that it was admitted by consent.</p>

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

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

<p>Slander for several sets of words (with a colloquium, &c.;) some of which charged the plaintiff with having sued the defendant on a note he had never signed, &c.; the others, with having signed the defendant’s name to said note without his permission, &c. Held, that the suit would lie for the latter words, but not for the former.</p> <p>To said words charging the plaintiff with signing the defendant’s name to the note without his permission, a plea that the plaintiff did sign the defendant’s name to said note without his permission, was held to be good.</p> <p>It is not sufficient in such action, that the words proved have the same meaning with those laid. All the words laid need not be proved, but so many of them must be proved as will support the action.</p>

<p>The assignor of a promissory note cannot complain that the assignee’s suit against the maker was not commenced in time, if judgment was obtained on the note at the first term of the Court after the assignment.</p> <p>A fieri facias on such judgment should be issued within a reasonable time after the.close of the term at which the judgment was rendered.</p> <p>Where the judgment in such case was rendered on the 21st of August, and the execution issued on the 21st of ¡September following, it was held, (the time when the Court adjourned not being-shown,) that the execution did not appear to have issued in time to bind the assignor.</p>

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

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

<p>A. having obtained judgment against B. for a certain sum of money, gave C. a written authority to collect a certaih part of the amount in A.’s name, and</p> <p>apply it to his C.’s own use. C. received from B. the amount of the order, and bound himself in writing to B. to repay him the amount so received if the said judgment should be reversed. The judgment was afterwards reversed, and B. sued A. in assumpsit for money had and received to recover back the money paid as aforesaid to C. Held., that the action could be sustained. Held, also, that interest in such case could only be recovered, under the statute, from the time the money was demanded.</p> <p>An entry on the record of the Circuit Court of a decision of the Supreme Court, in a case taken by appeal from the Circuit Court, is necessary before any action of the last-named Court in the cause remanded from the Supreme Court.</p> <p>But when the question in a suit in the Circuit Court is, whether a judgment in another action had been reversed or not, the record of the Court that reversed the judgment, or an agreement of the parties that it had been reversed, is sufficient to prove the reversal.</p>

<p>If one of two judgment-debtors, who knows the judgment has been paid, procure a fi. fa. to issue on the judgment, and assist in its execution on the other’s goods, he is liable in trespass to the party injured.</p>

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

<p>ERROR to the Vigo Circuit Court. Damages were assessed and judgment was rendered, in the Circuit Court, in favour of Clark, the plaintiff</p>

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

<p>an indorsee of a sealed note for the payment of 1,000 dollars, indorsed it in blank to B., who, without indorsing the note, delivered it to' C., and the latter sold it to D. without indorsing it. ' D. sued Jl. as indorser, an indorsement in full to the plaintiff being written over the defendant’s name. Held, that, supposing the plaintiff could only recover the amount the defendant had received from B. for the note, (of which, however, no opinion was given,) still a statement made by B. whilst he held the note, that he had paid for it only 650 dollars, could not be proved by the defendant; B. himself being a competent witness in the cause.</p>

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

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

<p>Debt on a promissory note. Plea, that the consideration of the note was the plaintiff’s undertaking, by bond, to convey to the defendant a certain tract of land, but that the plaintiff never had any title to the land. Tlie plaintiff having obtained oyer of the bond, replied to the plea. Held, on demurrer to the replication, that the plea was bad, the bond shown on oyer being materially different from that which the plea had previously described.</p>

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

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

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

<p>Assumpsit for goods sold and delivered, &c. Plea of payment, alleging that the plaintiff was indebted to the defendant in a certain sum for money had and received, &c. Replication in denial of the plea. Held, that a promissory note given by the plaintiff to a third person, and indorsed to the defendant before the suit was commenced, might be read in evidence by the defendant under the plea,</p>

<p>ERROR to the Union Circuit Court. Verdict and judgmgnt jn Oirciuit Court for Ross, the plaintiff.</p>

<p>In the case of a forfeited recognizance, an execution cannot be awarded against a recognizor, on whom a scire facias has not been served, and who has not appeared, until there have been two returns of not found to writs of scire facias against him, directed to the sheriff of the county in which the recognizance was taken.</p>

ERROR. The first-named case was from the Wayne Circuit Court; the second, from the Vanderburgh Circuit Court; and the third, from the Bartholomew Circuit Court.

<p>If a promissory note sued on be torn and a part of. it lost, a copy of the entire note sworn to is admissible evidence.</p> <p>An action at law lies on an unnegotiated promissory note, which has been lost or destroyed.</p> <p>A joint debtor with a bankrupt has a contingent claim on the latter, which is proveable under the commission of bankruptcy; and the bankrupt’s certificate will bar a suit against him for contribution.</p> <p>To render a certified bankrupt a competent witness for his co-debtor, in an action for the joint debt, the bankrupt must release to his assignee all claim to surplus and allowance.</p>

<p>G. as assignee sued N. as assignor of a promissory note payable to N., and negotiable and payable at a branch of the state bank. The declaration showed, inter alia, that the maker of the note had refused to pay, and that the plaintiff knew of his default. Plea, that G. indorsed his name on the ’ note, at the instance of the maker, for the purpose of guarantying its payment to N., and that the maker afterwards delivered to N. the note so indorsed ; and that N. afterwards sold the note to one S., and indorsed his, N.’s, name on it, for the purpose of transferring it to S. Replication, that the indorsement of the note by the defendant was made before the plaintiff indorsed the note. Held, that the plea and replication were both good.</p>

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

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

<p>A scire facias on the transcript of a justice’s judgment for execution against ■ real estate, should show that a transcript of the justice’s proceedings on the</p> <p>judgment was filed in the Circuit Court.</p>

<p>A bill of review, on account of newly discovered evidence, cannot be sustained, if, by the use of reasonably active diligence, the evidence might have been known to the complainant before the trial of the first cause.</p>

<p>Debt by the state, on the relation of the inhabitants of a congressional township in Washington county, against the school-commissioner of that county and his sureties, on their bond. The declaration shows that the boundary between the counties of Washington and Orange runs through said township ; that the commissioner had lent out “ school-money,” to secure which he had taken a mortgage for the use of the township; and that by the commissioner’s neglect, &c., the money was lost. Held, that the declaration was bad, first, because it was not stated, with sufficient certainty, that the money belonged to the relators; and, secondly, because there was no averment that the trustees of the township had decided, that the commissioner of Washington county should have jurisdiction over the school-land of the township.</p>

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

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

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

<p>Petition in the Probate Court against ah administrator for payment of a judgment against his intestate, alleging waste, &e. The petition was filed in 1842, and before the expiration of a year from the time of the defendant’s appointment as administrator. Held, that, without evidence of waste, the suit could not be sustained.</p>

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

<p>A second mortgagee, before forfeiture, filed a bill in chancery against the first mortgagee to compel him to surrender his mortgage, alleging that it had been paid. The bill did not show that the complainant was injured or was likely to be injured by the alleged incumbrance. Held, on demurrer, that the bill could not be sustained.</p>

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

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

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

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

<p>Assumpsit by the assignee against the assignor of a promissory note. A judgment had been obtained against the maker and a fi. fa. issued in due time. The fi. fa. was returned levied on certain property, which remained unsold for want of buyers. About five months after said return, an alias fi. fa. issued and was returned no property found. Held, that the second execution and the proceedings on it were void ; that on the return of the first execution, a venditioni exponas should have issued; and that, under the circumstances, the plaintiff could not recover.</p>

<p>A suit cannot be sustained by husband and wife for a libel on them both.</p> <p>In the case of such libel there should be two actions, one by the husband for the injury to him, and the other by husband and wife for the injury to the wife.</p>

<p>In general, a creditor having a right to resort to two safe and sufficient funds for satisfaction of his debt, may he compelled, in equity, by another creditor of the same debtor having a lien on one of those funds only, to look to that fund which the latter cannot touch, or, if the former creditor have exhausted the fund bound for the debts of both creditors, leaving the other fund unexhausted, that fund may be reached by the unsatisfied creditor, by the application of the principle of substitution.</p> <p>But there is no rule in equity, by which a creditor can be compelled to accept a security for his debt, or by which another creditor can resort to it in his place, after he has rejected it.</p>

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

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

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

<p>To maintain trover, the plaintiff must show that, at the time of tile conversion, he had a right of property and of possession in the goods.</p> <p>After a person has been declared a bankrupt, and his goods have passed to his assignee, he has no right of property or of possession in the goods.</p> <p>The transcript of a record of the District Court of the V. States for another state, is, if properly authenticated, admissible evidence in the Courts of this state.</p>

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

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

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

<p>A scire facias on a justice’s transcript, &c., may be amended before plea by striking out an immaterial averment.</p> <p>The Court may permit the plaintiff to withdraw a demurrer to a plea and reply to it, after the giving of an opinion against the plea, but before judgment rendered, on the demurrer.</p> <p>Scire facias on a justice’s transcript to have execution against land, the judgment-debtor, who was the patentee, being dead. Held, that evidence that the land was subject to a trust, or to a pre-emption right, was inadmissible.</p>

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

<p>In a suit on a bill of exchange payable to a firm, brought by the drawer, who had paid the bill, against the acceptor, it is sufficient to describe the bill in the declaration as payable to the firm, without setting out the names of the members of the firm.</p> <p>The declaration in a suit against the administrator of the acceptor of a bill of exchange, need not allege that the plaintiff’s claim had been filed in the office of the clerk of the Probate Court.</p> <p>If a demurrer to the declaration in such case be overruled, the Court may assess the damages so far as the amount due on the bill of exchange is concerned ; but in respect to the costs of protest, if chargeable at all, there should be a jury of inquiry.</p> <p>In such suit, the judgment, if for the plaintiff, should be for the damages and costs to be levied of the intestate’s goods if the defendant have so much, and if he have not, then the costs of the defendant’s own goods.</p>

<p>The words, “He” (meaning the plaintiff) “took a false oath,” are not in themselves actionable.</p> <p>In a suit for such words, there must not only be in the declaration the requisite inducement and colloquium, but there must also be an innuendo explaining the defendant’s meaning by reference to the previous matter.</p> <p>But if the words laid do, of themselves, import a crime, there is no occasion for an innuendo explaining their meaning.</p>

<p>Suit by A., for the use of a certain Packet Boat Company, against B. and C. on a promissory note payable to the plaintiff for the use of said company. B. pleaded in bar that he and the plaintiff were, at the time of making the note, and still were, partners in said company ; that the plaintiff held the note in trust for said company; and that the consideration of the note was certain canal-boats, &c., purchased by the defendants of the company. Held, that the plea was bad.</p> <p>But had the note been payable to the company, a suit on it by the company could not have been sustained ; for B. being one of the company, the same person would then have been both plaintiff and defendant.</p> <p>A verbal contract, made at the time a promissory note is executed, varying the terms of the note, cannot be set up to defeat a suit on the note.</p> <p>If a plea profess to answer the whole declaration and answer only a part, it is bad on general demurrer.</p> <p>Where a cause has been tried by the Court instead of a jury, the record should show that the cause was submitted to the Court by the parties.</p>

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

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

<p>Declaration in assumpsit by Joseph Harter, alleging that the defendant made his promissory note, commonly called a due-bill, by which he acknowledged himself indebted to the plaintiff by the name of “The estate of Thos.</p> <p>Eager, deceased,” the plaintiff being the administrator of said estate, in the sum of, &e.; and then and there delivered the same to the plaintiff. Held, that the declaration was good ; and that a writing agreeing with that described in the declaration, was admissible evidence for the plaintiff.</p> <p>An amendment of the declaration not affecting, the merits, and which could not prejudice the defendant in his defence, is no cause for a continuance.</p>

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

<p>A fieri facias on a justice’s judgment which was replevied, issued at the request of the surety before the expiration of the replevy, without an affidavit, is, under the statute of 1838, irregular and void.</p> <p>If an execution so issued be levied by the constable, he may, when informed of the invalidity of the writ, abandon the levy.</p> <p>A plea asserting a right founded on a statute, should aver every fact necessary to show that the case is within it.</p>

<p>If a defendant having craved and obtained oyer of an instrument declared on, demur to the declaration without spreading the instrument on the record, the demurrer stands as if oyei• had not been craved.</p> <p>A declaration is not objectionable because it describes the plaintiffs as executors, and sets out a cause of action in their own right.</p>

<p>The sum reserved for education by the charter of the state bank on individual stock, and the ad valorem tax thereon, cannot, together, exceed one per cent. on such portion of said stock as has been paid in, and on account of which the stockholders are not indebted to the state.</p>

<p>The state bank can be the owner of real estate only in a few cases, which are enumerated in its charter.</p> <p>Any property of the bank, whether it be land, or promissory notes, or specie, which it acquires and holds under the authority of the charter, is part of its capital stock.</p> <p>The property of the bank subject to an ad valorem tax, is such portion of the individual stock as has been paid in, and on account of which the stockholders are not indebted to the state.</p> <p>The real estate of the bank, acquired and held under its charter, is exempt, as such estate, from taxation.</p> <p>If real estate, exempt from taxation, be assessed for taxes, the levying thereof by the collector cannot be justified under the duplicate and precept.</p>

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

<p>A conveyance of real estate made to defraud creditors will, on their application, be set aside in chancery, if the grantee, before payment of the purchase-money, have notice of the fraud.</p>

<p>The following writing signed by A. was delivered by him to B.: “ Rec’d of B. three dollars and fifty cents for the rent of my brick-house in Covington for one month, with the privilege of keeping it six months at the same rate. No. 91 or 95. Dec’r 1st, 1843.” Held, that this was a lease of the premises given upon an executed consideration by A. to B. for one month from the date, and from month to month for five months longer, if B. should pay A. at the commencement of each month three dollars and fifty cents for rent.</p>

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

<p>Assumpsit by the assignee of the payee of a promissory note against the maker. The note was dated the 1st of December, 1836, and payable 90 days after date. Plea, that the note was executed in part consideration of certain town lots ; that on the execution of the note, the payee gave his title-bond to- the defendant, the condition of which (after reciting that he had received one-third of the purchase-money, and the defendant’s note for the residue payable in three years) was for a conveyance of the lots to the defendant on payment of the residue of the purchase-money; that four years elapsed after said notes.and bond were given before this suit was commenced; that the note sued on was given for the one-third of the purchase-money alleged in the bond to have been paid ; and that the payee did not on the 1st of December, 1839, or at any time previously, execute or offer to execute to the defendant a deed for the lots ; wherefore the consideration of the note had failed. Held, that the plea was bad.</p>

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

<p>- An alteration in a bond or deed made after its execution in a material part, without the consent of the parties, vitiates the instrument. But if the alteration were made with consent of parties, the instrument is valid.</p> <p>Whether blanks left in a bond when it was signed and sealed, and which were afterwards filled up, had been filled up with the obligor’s consent, is a question for the jury.</p> <p>The Supreme Court will not interfere with the finding of the Circuit Court on a question of fact submitted to it, if the testimony be conflicting.</p>

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

<p>A suit in chancery was ready for final hearing, under the act of 1838, as soon as the issue was completed, unless depositions were to be taken.</p> <p>It was not necessary, under the act of 1831, to the validity of a will, that it should be recorded in the recorder’s office.</p>

<p>Debt on a delivery-bond, the condition reciting the fi. fa. but not the judgment. Pleas, 1. No consideration. 2. The bond was obtained by fraud, covin, and misrepresentation. ' 3. Payment of the judgment before the execution issued. Held, on general demurrer, that the picas were good.</p>

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

<p>A ca. sa. issued under the statute of 1838 on a justice’s judgment, without a previous return of nulla Iona to a fi. fa.,- or an affidavit filed as prescribed by the statute, is illegal; and a bond for the prison-limits, executed rrpon the - arrest of the judgment-debtor on a ca. sa. so issued, is without consideration.</p>

<p>A widow has no claim on her deceased husband’s estate, relative to the 100 dollars’ worth of personal property allowed her by the act of 1838, if she fail to select the property before the sale of it by the executor.</p>

<p>In a criminal cause taken by a change of venue from one Circuit Court to another, the record on a writ of error must show, not only that the Court before which the indictment was found, but also that the Court which tried the cause, had jurisdiction of the offence.</p> <p>The jurisdiction of the Court that tried the cause can be shown only by a statement, in the nature of a caption to its proceedings, that the indictment was filed there, and that the prisoner was tried upon it.</p> <p>The indictment should also constitute a part of the record of the last-mentioned Court.</p> <p>.The Court, on the trial of such cause, instructed the jury as follows : “ If the defendant has omittéd to avail himself of evidence within his reach, by which he might have repelled that which was offered to his prejudice, his omission to do so supplies a strong presumption that the charge is well founded.” Held, that the instruction was erroneous.</p>

<p>To debt on bond conditioned for the conveyance of real estate within a certain time, the defendant may plead that the deed had not been demanded before the commencement of the suit.</p> <p>But it is not necessary that the holder of such bond should prepare the deed ■and present it to the obligor to be executed.</p> <p>One of the counts on such bond, setting forth the condition and assigning breaches, was barred by a valid plea. The other count was on the penal part of the bond only ; and a plea thereto (oyer having been obtained of the condition) was correctly overruled on demurrer, but no breaches were suggested. Held, that damages could not be assessed for the plaintiff on either count.</p>

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

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

<p>A deed of bargain and sale of real estate, executed by an infant for valuable consideration, is voidable but not void.</p> <p>A female infant residing in Pennsylvania executed there a deed of bargain and sale for land situate in this state. She afterwards married, but whether before or after her majority did not appear, nor did it appear where, after the execution of the deed, she and her husband had resided, nor that her husband had acquiesced in the deed after he know of it. Held,, that the lapse of about five years after the wife’s majority, without any attempt to disaffirm the conveyance, did not, under the circumstances, prevent the husband and wife from disaffirming it.</p> <p>An action of ejectment for premises conveyed by the lessor whilst an infant, commenced after his majority, and within a proper period, is a valid avoidance of the conveyance ; but the grantee or tenant in possession must be notified of the intention to disaffirm before the commencement of the action.</p> <p>In ejectment for an entire tract of land, any undivided portion of it may be recovered.</p> <p>Brothers and sisters of the half-blood inherited, under the act of 1818, the estate of a deceased brother, equally with brothers and sisters of the whole blood.</p>

<p>Trespass for an assault and battery, the declaration containing only one count. Pleas, 1. Not guilty ; 2. Son assault demesne. The plaintiff new assigned. Plea, not guilty, to the new assignment. Held, that the plaintiff was not obliged to prove two trespasses; but that it was sufficient for him to prove a trespass differing from that justified and agreeing with that described in the new assignment.</p>

<p>The statute of frauds does not require that an agreement for the sale of real estate should be signed by both parties. It is sufficient if it have the signature of the party sued.</p> <p>If by such agreement, the making of the title and the payment of the purchase-money are to be concurrent acts, neither party can sustain a suit on the agreement without having first performed or offered to perform his part of it.</p> <p>Nor can a party to such contract rescind it without the other’s consent, unless there has been an offer of performance on his part, and a refusal to perform by the other.</p> <p>A vendee of real estate has a lien thereon for the money paid, if the vendor refuse to convey; and the lien continues against a subsequent purchaser with notice.</p>

<p>A printed form of a promissory note, payable ninety days after date at the branch bank at Lafayette, was signed by A. and indorsed by B.; blanks were left for the date, the payee’s name, and the sum ; and in the margin there was a printed direction to “ credit the drawer,” signed by B. The note, in this form, was submitted by A. to said bank for the purpose of renewing a note of the same parties in bank about to become due. A. not being prepared to pay the part of the debt required, the bank refused to renew at ninety days, but was willing to do so at thirty days. A. being informed of this by the clerk of the bank, directed him to make the note payable in thirty days, which, without B.’s consent, was accordingly done; the word ninety being struck out and thirty inserted in its place. The blanks were filled, &c. — the one for the date with the day when the old note fell due. Held, that B., in consequence of the change thus 'made in the time of payment of the note, was not liable as indorser thereof.</p> <p>If the indorser of a promissory note payable at a hank at A., reside four or five miles from A. in the country, and use the post-office at A., it being as near his residence as any other, notice of the non-payment of the note may he given to him, by putting the notice into the post-office at A. directed to him there.</p>

<p>The judges of the Circuit Court are not bound to seal a bill of exceptions, which requires the clerk to insert therein copies of certain papers after the bill shall have been sealed.</p>

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

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

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

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

<p>A note and mortgage appearing on their face- to be executed to the state bank in its corporate name, will be presumed to have been taken in conformity with the charter of the bank, until the contrary be shown.</p> <p>The bank, by the 6th section of the charter, may hold real estate which shall have been mortgaged to it by way of security for money due to it on a promissory note, executed on the same day with the mortgage.</p> <p>A steam-engine erected in a permanent manner in a tan-yard to facilitate the process of tanning, and used there for such purpose for two or three years, but which could be removed without injury to the building with which it was connected by braces, — was held to be a fixture, and to pass, by a mortgage of the land on which it was erected, to the mortgagee.</p> <p>A subsequent mortgage of-real estate, though first recorded, will not prevail against a prior one which is not recorded in time, if the subsequent mortgagee had actual notice of the prior mortgage.</p> <p>If a judgment be obtained against a person subsequently to his execution of a mortgage, but before the mortgage is recorded, the mortgage though it was not recorded in time will have the preference. But, perhaps, a Iona fide purchaser at sheriff’s sale under the judgment might be protected by the statute.</p>

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

<p>The act of 1843 respecting interest, which declares that usurious contracts shall not be void, &c., embraces contracts made before as well as those made after its passage, and is constitutional.</p>

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

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

<p>A plea to a suit on a promissory note relied on the plaintiff’s non-performance of a certain agreement set out in the plea. The replication described the agreement, which differed materially from that stated in the plea. Held, on general demurrer, that the replication was valid ; it being a substantial denial of the plea.</p> <p>A rejoinder professing to be to the whole of said replication, but only attempting to answer an immaterial part, was held to be bad.</p> <p>A pica professing to answer the whole declaration, and attempting to answer only one of the counts, is bad in substance.</p> <p>To a suit on a promissory note, the defendant pleaded that the note sued on, and other notes, &e., were given in payment for the “Wabash Courier” newspaper and printing establishment, &e., at Tern-Haute ; that in further consideration of said notes, it was agreed by the plaintiff that no newspaper or printing-office should be established by him, or by any person for him, within fifty miles of that place; that one T. D., who, at the time of the sale, owned one-half of said property, had since the sale established, and continued to publish, a newspaper called “The Wabash Express” in Terre-Haute ; that the plaintiff, at the time of establishing the paper, and since, aided the said T. D. in establishing and continuing it, and, in fraud of his agreement, aided in diverting the patronage of the newspaper and establishment, sold as aforesaid, from the same; that by his aid and procurement, and in combination with said T. T>., the same was diverted and withdrawn from the “Wabash Courier,” and transferred to “The Wabash Express;” to the injury, &c. Held, that the plea was insufficient.</p>

<p>A voluntary conveyance of real estate cannot be impeached by proof of the verbal or written declarations of the grantor; made subsequently to its execution.</p> <p>Such conveyance, if made bona fide, is valid against a subsequent purchaser with notice.</p> <p>That a person was deeply involved in debt when he executed a voluntary conveyance of land, is strong evidence that the conveyance was made to defraud subsequent purchasers..</p>

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

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

<p>A writ, issued in A. county against three persons, was returned “ not found ” as to two of them, and the return suggested of record. The other defendant pleaded in abatement, that all the defendants were, when the writ issued, and still were, resident in B. county. Held, that the plea was bad.</p>

<p>Indictment against A., B., and C., for failing to discharge their duty as county commissioners, &e. The defendants pleaded guilty ; and a judgment was rendered against them, that they make their fine in a certain sum to the state. Held, that this judgment being joint, was erroneous.</p> <p>In the caption of an indictment a certain year was named ; but in the indictment itself, commencing with the words, “The grand jurors impanelled,” &e., there was no notice of any year except by the words, “ in the year of our Lord aforesaid,” &c. Held, that the indictment therefore (the caption being no part of it) was bad.</p>

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

<p>A common carrier, or a private person who undertakes for hire to carry an,d deliver goods safely, is bound to pursue the usual and ordinary route. If he unnecessarily deviate from that route, he will be liable for any injury to the goods which may be thereby occasioned.</p>

<p>Assumpsit for lumber sold and delivered. Pleas, non assumpsit and set-off. On the trial, the defendant introduced in evidence a bill of lumber made out by a carpenter who had built him a house. The Court permitted the jury to take this bill to their room, after charging them that they could not receive it as evidence of itself of the amount of lumber contained in the house, but that if a witness had testified to it as being the correct amount of lumber the house contained, they might refer to it as a memorandum of what his evidence was on that subject'. Held, that, under the statute, there was no error in permitting the jury, with the instructions given, to take the bill.</p>

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

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

<p>If a justice of the peace issue a slate-warrant on an insufficient affidavit, and the party accused, on being arrested, proceed to trial before the justice without objection, the insufficiency of the affidavit will not render the proceedings coram non judice. And to charge a witness with swearing false on such trial is actionable.</p> <p>A justice of the peace is authorized to try and sentence a person accused of disturbing a lawful assembly.</p> <p>If a witness on his examination make a false statement, but afterwards correct it, so that his testimony is ultimately true, he is not guilty of perjury ; and to charge him, without qualification, with swearing false in reference to that statement, is actionable.</p>

<p>A voluntary conveyance of real estate is not void as to subsequent creditors, merely because the grantor was indebted 25 or 30 dollars at the date of the deed.</p> <p>After such conveyance, the grantor contracted a debt for which judgment was obtained before the conveyance was recorded. Subsequently to recording the conveyance, (which was not recorded in time,) the land was sold under an execution on said judgment. Held, that the purchaser, having notice by the record of the prior deed, took nothing by his purchase.</p> <p>A husband cannot convey land immediately to his wife, but he may convey it to trustees for her use.</p> <p>Under the statute, a bona fide conveyance of real estate, whether for a consideration or not, passes, prima facie, the grantor’s interest in the premises, and the possession thereof, to the grantee.</p>

<p>Iii opening a road established by the county commissioners, the supervisor cannot deviate from the course of the road so established.</p> <p>No presumption of dedication of uncultivated land of the 27. States for a highway, can be raised from the use of such land as a highway by the public.</p>

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

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

<p>Covenant. The declaration alleged that by an agreement of the partios under seal, the defendant had let to the plaintiff a distillery for a year, and was to furnish sufficient meal to keep it running ; that the plaintiff was to deliver to- the defendant a certain quantity of whiskey, at the distillery, for every sixty pounds of meal so delivered ; that the defendant was to furnish barrels to hold the whiskey; that if the defendant failed, at any time, to furnish meal as aforesaid, the plaintiff might furnish the distillery himself, and have the same rent free, till the defendant should again furnish meal; that if the plaintiff, at any time, failed to pay for the meal as fast as it was delivered or distilled, the agreement should be void ; and that the defendant should give the plaintiff ten days’ notice of his intontion to stop furnishing the meal. Breach, that the defendant had failed to furnish the meal without giving the ten days’ notice, &c.</p> <p>Plea, that the defendant had kept his covenants, until the plaintiff’s non-performance as thereinafter mentioned, and had furnished the plaintiff with sufficient meal to keep the distillery running, and barrels to hold the whiskey ; yet the plaintiff had afterwards failed to pay, &c., by delivering the whiskey, &c., whereby the agreement became void.</p> <p>Held, that the declaration and plea were both good.</p>

<p>In a case of ad quod damnum, in relation to the erecting or the continuing of a mill-dam, the petition, the writ, and the inquest, or at least the latter, should name all the proprietors of lands, both above and below the site of the dam, who may be or have been, in any way, injured by the dam.</p>

<p>Assumpsit will uot lie on a specialty.</p> <p>In case of a misjoinder of actions, there should not be a separate demurrer to each count, but one demurrer to the whole declaration.</p> <p>A written promise of indemnity, whether under seal or not, is, under the statute, assignable.</p>

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

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

<p>If an administrator lend the money of the estate while there are debts to pay, without an order of the Probate Court, and the money be not repaid, he is guilty of waste.</p> <p>If a Probate Court revoke letters of administration, it must be presumed, till the contrary appear, that the same Court had granted them.</p> <p>For waste committed by an administrator, who has been removed from office, a suit (without a previous judgment against him) may be brought against him and his surety on the administration bond, on the relation of his successor.</p>

<p>In a suit on the assignment of a promissory note, it appeared that the maker had died on the fifth day of the term of the Court next after the assignment, leaving considerable personal property, hut not sufficient to pay his debts; that his real estate, which was sold after his decease, was not sufficient to pay the liens which were on it at the time of his death; that the note, which was previously due, was assigned about the 15th of December, 1839, and the next term of the Court commenced in March, 1840. The dates of said liens were not shown. Held, that the maker’s insolvency was not sufficiently proved to excuse the plaintiff for not having sued him.</p> <p>Held, also, that the circumstance that several suits by other persons against the maker had abated at said term, was not sufficient, of itself, to show that the plaintiff could not have obtained judgment against him.</p> <p>The act of 1838 preserves the liens of judgments in the case of an insolvent estate.</p>

<p>On the trial of an indictment for establishing a noxious trade, near certain dwellings, &c., the defendant may prove in bar of the prosecution, under the general issue, that the dwelling-house in the vicinity of the place, &c., was built after the, establishment of the alleged nuisance.</p>

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

<p>Where a cause is submitted to the Cíireuit Court, the judgment will not be reversed on account of an apparent contradiction in the statements of a witness.</p> <p>A person, to whom an account of more than five years’ standing was presented, did not object to the account, but said he thought he had paid it, and had the receipt at home. Held, that this was not a sufficient acknowledgment to take the case out of the statute of limitations.</p> <p>But a payment, on account of principal or interest, will take the case out of the statute.</p>

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

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

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

<p>To maintain an action of assumpsit, it must be shown that the consideration for the promise moved from the plaintiff.</p>

<p>Suit by notice and motion, under the act of 1838, against a sheriff for not returning an execution. Judgment by default, damages assessed by a jury, and final judgment for the plaintiff. In the judgment, the Court stated that it appeared to their satisfaction that notice of the motion had been served on the defendant ten days, &c. Held, that there was no error in the proceedings.</p>

<p>If after the issuing of a fi. fa. by a justice of the peace, and before its execution, the plaintiff die, the writ may still be executed; and if the justice after-wards prevent its execution, he may, for any loss thereby caused to the estate of the deceased, be sued in ease by the administrator of such estate.</p> <p>The contents of a paper cannot be proved by secondary evidence, unless its loss or destruction be positively proved, or it appear that bona fide and diligent search had been made for it in vain, where it was likely to be found.</p> <p>And, in general, the loss of the paper must be proved by the person in whose hands it was at the time of the loss, or to whose custody it is traced, if he be living.</p>

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

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

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

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

The petition in this case prayed that the writ should be directed to Lorenzo D. Hovey and wife, commanding them to have the body of the infant, &c., before the Court, &c. The writ was granted accordingly.

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

<p>SUIT in chancery certified from the Cass Circuit Court.</p>

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

<p>At a public sale of town-lots, a lot was struck off to a person for a certain sum, and a memorandum of the purchase was made at the time, by the clerk of the sale, in the sale-book. Held, that the sale was valid under the statute of frauds.</p> <p>The vendor of the lot so sold afterwards tendered a good conveyance' in fee for the lot to the vendee, if he would pay the purchase-money, or allow the same on a note held by him on the vendor. The tender was refused. Held, in a suit on the note by the assignee of the vendee, (the assignment having been made after the tender,) that said purchase-money was a legal matter of set-off.</p>

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

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

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

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

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

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

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

<p>In debt on a delivery-bond, a plea relying on the parol agreement of the plaintiff dispensing with the defendant’s performance of the condition of the bond, is bad.</p> <p>An accord cannot, in any case, be pleaded in bar, unless it be executed.</p>

<p>Held, that a bill in chancery filed by the obligee of a title-bond in possession of the’ premises, to enjoin an action of ejectment brought on the demise of the obligor’s grantee, should allege that possession of the premises had been demanded of the complainant before the action of ejectment was brought. Held, also, (as the complainant was to have the title when he paid the purchase-money) that the bill should aver that the purchase-money had been paid.</p> <p>The obligee of such bond mortgaged it to A., and the latter afterwards obtained the legal title to the premises from the obligor and gave up the bond to him. Held, that a bill filed by the mortgagor against the mortgagee and obligor to set aside that transaction between the defendants could not be sustained; the transaction not being of any injury to the complainant.</p> <p>A prayer in such bill, that the mortgagee be decreed to file a bill of foreclosure against the complainant, is mere surplusage.</p>

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

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

<p>In an indictment for administering medicine to procure abortion, the name of the medicine need not be stated, nor need the medicine be described as noxious.</p>

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

<p>The goods of a stranger found on demised premises are liable to be distrained for rent, unless they be such as are specially exempted by the common law, or by the statute regulating distress for rent.</p> <p>Goods were mortgaged by a tenant of real estate to a stranger, and were left in the former’s possession on the premises by an agreement in the mortgage. Held, that the facts that the mortgage was recorded, and that the landlord had made no objection to the goods remaining on the premises, were no evidence that the goods were on the premises with the landlord’s consent.</p> <p>The landlord’s claim on goods distrained on demised premises is not limited to one year’s rent.</p>

<p>If the surety for a debt pay the same before it is due, the payment will, after the debt has become due, but not before, be a legal set-off against his note payable to the principal and held by him.</p> <p>Such payment is also a good set-off against the said note in the hands of an assignee, if notice of the assignment had not been given to the maker before the payment became a valid demand against the payee.</p>

<p>Where two pleas are substantially the same, one of them should be rejected on the plaintiff’s motion.</p> <p>A demurrer to a plea assigning for cause that the plea is double, without showing in what the duplicity consists, is a general demurrer.</p> <p>Where one party to a special entire contract has not complied with its terms, but, professing to act under it, has done for, or delivered to, the other party something of value to him which ho has accepted, no action will lie on that contract for the work done or thing delivered; but the party who has been thus benefited by the labour or property of the other, will be responsible on an implied promise, arising from the circumstances, to the extent of the value received by him.</p>

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

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

<p>Ill assumpsit against partners for goods sold and delivered, the plaintiff having proved that one of the defendants had examined his (the plaintiff’s) books, containing the items of his account against the defendants, and had acknowledged them as they were stated in the books to be correct, — offered to prove said items by parol evidence, without producing the books or accounting for their absence. Held, that the evidence was inadmissible.</p>

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

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

<p>On a decree of foreclosure and for a sale of the land mortgaged, the sale should he made in conformity with the statute in force when the mortgage was executed.</p>