Volume 7 — Indiana Reports

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

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

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

<p>Section 54, p. 332, E. S. 1843, which provided that every public highway already laid out, or which might thereafter be laid out, and which should not be opened and worked within six years from the time'of its being so laid out, should cease to be a highway for any purpose whatever, did not apply to the streets or alleys of a town or city.</p> <p>Section 2 of the act of 1818 “for recording town plats,” (E. S. 1831, p. 530,5 was applicable to dedications of streets.</p> <p>Under that section, real estate dedicated for a street or alley, could not be reclaimed by the donor, without the consent of the owners of the property adjoining such street or alley.</p> <p>The laying out of an addition to a town, recording the plat, and selling lots with reference to the adjoining streets and alleys, give to the proprietors of such lots a private right in such streets or alleys, distinct from the claim of the public, which even the legislature can not take away, unless to appropriate such streets or alleys to a public use.</p> <p>Every street is a highway, but every highway is not a street.</p>

<p>The declaration of emergency contemplated in section 28 of article 4 of the constitution of 1851, can not be taken by implication, but must be expressly declared in substantial conformity to the requirement of the constitution.</p> <p>A declaration by the legislature that an act shall take effect on a future day specified, is not, of itself, a declaration of emergency, within the meaning of said section.</p> <p>The publication and circulation of acts of the legislature, unless done “by authority,” can not, under said section, affect the period of their taking effect.</p> <p>The act regulating descents and the apportionment of estates, approved May 14, 1852, did not take effect until May 6, 1853.</p> <p>A. died in December, 1852, seized in fee of land in this state. Held, that his widow was only entitled to dower in the land.</p>

<p>The written undertaking required to authorize the issuing of a writ of attachment, may, under the R. S. 1852, be executed by a surety alone.</p> <p>Evidence of the general reputation of a defendant is admissible in a civil proceeding, only where his character is in issue.</p> <p>The evidence, even in that case, must be confined to the reputation of the party, with special reference to the nature of the question in issue.</p> <p>That an improper question was allowed to be put to a witness, where the record does not disclose what or whether any answer was made to it, can not he assigned for error.</p> <p>On the trial of a proceeding in attachment, the defendants will not be allowed to give evidence of declarations made by themselves when the sheriff executed the writ.</p> <p>To make an objection to evidence available on error, the record mtist show that the ground of objection was pointed out to the Court below.</p> <p>"Whether an assignment of goods was made with a fraudulent intent, is, by the statute, a question for the decision of the jury, and not of the Court.</p>

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

<p>If a party to a judgment, under tlie B. S. 1852, prosecutes to final determination an action in the Court where the judgment was rendered for a review of the proceedings upon which the judgment was founded, he can not afterward prosecute an appeal from the same judgment to the Supreme Court.</p> <p>The charter of the Indiana Mutual Fire Insurance Company provides, that in case of a loss by fire, the assured shall give notice thereof in writing to the directors, and that the directors, upon being so notified, shall, on view, or in some other way as they may deem proper, ascertain and determine the loss, &c.; and if the assured is not satisfied with their determination, he may bring an action in the next Court to be holden for Marion county, and not after-wards, &c. In a suit by the assured against the company in the Vigo Circuit Court, to recover damages for a loss, &c., where, after having been notified as provided by the charter, they did not proceed “to ascertain and determine the loss” as therein required, held, that jurisdiction in such cases, was not limited to the Courts of Marion county, but was to be determined by the general statute in relation to suits against corporations.</p> <p>In relation to actions against corporations, the general rule, under the E. S. 1852, is, that they may be instituted in any county where the corporation has an office for the transaction of business, or any person resides upon whom process against such corporation may be served.</p>

<p>A pump inserted in a well by a tenant, for his convenience, may be removed by him, during or at the expiration of his term, at pleasure.</p> <p>If a tenant do not, during or at the expiration of his term, remove all fixtures erected by him on the demised premises, he will be presumed to have abandoned them.</p> <p>That presumption will, however, be rebutted by proof of an oral agreement reserving to him the property in them and the right to remove them after the term has expired.</p>

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

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

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

<p>Where the title to real estate is the sole or principal thing sought to be determined, as in the former action of ejectment, there the title to real estate is in issue, within the meaning of section 11 of the act to establish Courts of Common Pleas, and those Courts have no jurisdiction; but where it is not the chief purpose of the action to determine the title, but the question only arises incidentally, as in partition, the juiisdiction exists.</p> <p>The word “issue,” as usod in law, is technical. It is the point in dispute between the parties, on which they put their cause to trial.</p> <p>It is the duty of Courts to give a liberal construction to statutes, and a strict construction to constitutional provisions.</p>

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

<p>Statutes will be regarded as prospective, unless tbe intention to give tbem a retrospective operation is clearly expressed; and they will not then be treated as retrospective, if, by so construing them, they will divest vested rights.</p> <p>The charter of a corporation constitutes a contract between the corporation and the state, and secures to the company a vested right in its franchise. This right is subject to any cause of forfeiture existing at the period of the enactment of the charter, but can not be divested by a subsequent enactment.</p> <p>But it is competent for the legislature, at its pleasure, to alter the remedy for enforcing the forfeiture.</p> <p>The mere failure of a corporation to pay a debt, ivas not, prior to the K. S. 1852, such a non-feasance as authorized proceedings by quo warranto or scire facias for its dissolution. Those remedies were only allowed where the corporation had misapplied the powers confided to it, or neglected to apply them toward the attainment of the purpose for which they were granted.</p> <p>Corporations, before the B. S. 1852 took effect, were only subject to the remedies for the non-payment of their debts, to which natural persons wore.</p> <p>The provisions of sections 16 and 17 of the “act establishing general princiPles acting corporations,” approved June 15, 1852, do not apply to corporations which were in existence before it took effect.</p> <p>That act took effect on the 6th day of May, 1853.</p>

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

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

<p>A., in 1850, bound himself by title-bond to B., to convey to him certain town lots by a good and sufficient warranty deed, on the payment of the first instalment of the purchase-money, &c. Before tho bond was executed, an agent of A., without his knowledge, had sold one of the lots to G. In a suit by B. against A., for specific performance—</p> <p>Held, that A. could not be compelled to execute to B. a deed for the lot which had thus been sold by A.’s agent.</p> <p>Held,, also, that B. had the option to take a conveyance of the lots to which A. could not make him a title, and have an abatement of the purchase-money as to the one sold to G.; or to abandon the contract altogether.</p> <p>Held, also, that it was requisite, under the bond, that the deed from A. to B. should contain a relinquishment of A.’s wife’s dower, and that, in the decree for specific performance, it should have been provided that her dower should thus be relinquished, and that, in the event of her refusal, there should be a proper abatement of the purchase-money.</p>

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

<p>Where a specific lien or substantial benefit is surrendered, upon the express promise of a third person to pay a debt, the promise is an original undertaking, and not within the statute of frauds.</p>

<p>Trespass on the ease for a nuisance. The declaration stated that, on, &c., at, &c., the defendant was the possessor and occupier of a messuage and appurtenances in the town of, &c., adjoining a public street, in which there was a hole or pit leading to the defendant’s cellar, which the defendant wrongfully-left open and uncovered, into which the plaintiff fell while passing in the night, by which his leg was broken, &e. Held, that the declaration was not objectionable for not stating that the nuisance was unknown to the plaintiff when the injury happened.</p> <p>That an instruction was given to the jury which is abstractly erroneous, is not sufficient to reverse the judgment, if, under the facts of the case, the party excepting was not injured by it.</p> <p>The jury were instructed, in the present case, that they might give exemplary damages. The evidence showed that the defendant had acted with due care and prudence, and that had his directions to his workmen been followed, the injury would not have occurred. It was held, under the circumstances of the case, that the instruction was wrong.</p>

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

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

<p>Hone of the provisions of the act approved February 24, 1840, entitled “an act to amend an act subjecting real and personal estate to execution, approved February 4, 1838,” apply to judgments rendered between the 24th of February and 4th of March, 1840.</p> <p>Judgments rendered between the 24th of February and 4th of March, 1840, were repleviable under the statute of 1838 only.</p> <p>A. having recovered a judgment against B., in the Circuit Court, on the 25th of February, 1840, C., on the 12th of March, 1840, appeared before the clerk, and executed a writing under seal, on the order-book, by which he acknowledged himself security for the payment of the judgment debt, interest and costs accrued, accruing and to accrue within twelve months from and after the 1st of March, 1840.</p> <p>Held, that the writing was not a recognizance of replevin bail, under the R. S. 1838.</p> <p>Held, also, that the circumstance that B. did not object to the terms of the entry and that he submitted to a stay of execution until the expiration of a year from March 1, 1840, was unimportant.</p> <p>An entry, to operate as a valid recognizance of replevin bail, must show upon its face that it is such.</p>

<p>A. had an equitable lien, by note for unpaid purchase money, on land bought by B. B. died intestate, seized of the land, and also of another tract, and leaving surviving him a widow and ten heirs, most of whom were minors. After B.’s decease, the widow and one of the heirs and C. (who was informed of all the facts, no fraud having been practised,) met, and agreed between themselves that 0. should receive the latter-named tract in satisfae- • tion of said note. Pursuant to the agreement, the widow and said heir executed to O. a penal bond, conditioned that they would make or cause to he made to C. a deed in fee for the premises, conveying a clear title. C. thereupon surrendered to the administrator of B. the note, &e. The obligors in the title-bond did not, nor could they, comply with the condition of the bond. Edd, that the note, by being surrendered to the administrator, was extinguished; that G.’s remedy was upon the bond; and that B.’s estate could not be made liable.</p>

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

<p>If the affidavit for a change of venue, in a civil cause, is in substantial conformity to the statute, the duty of the Court to grant it is imperative. Counter affidavits are not admissible; nor can the personal knowledge of the judge in relation to the facts sworn to, be allowed to affect the application.</p> <p>An affidavit, before a judge of Common Pleas, for a change of venue, alleged as the ground of the application, that the judge had been engaged as counsel for the adverse party, &c., without alleging, in the words of the statute, that the engagement was “prior to his election as judge,” &c. Held, notwithstanding, that the affidavit was sufficient.</p>

<p>In an action for a divorce, under the R. S. 1852, where the defendant is a nonresident, a publication of notice of the pendency of the suit, pursuant to the statute, is sufficient to give jurisdiction of the person of the defendant, without the issuing of a summons.</p> <p>In a publication of notice to a non-resident defendant of the pendency of an action, it is not necessary, under the R. S. 1852, to specify the day of the commencement of the term at which the cause will stand for trial.</p> <p>Petition, under the R. S. 1852, for a divorce, and decree for the plaintiff. There was no appearance by the defendant, nor by the prosecuting attorney. Held, that the neglect of the prosecuting attorney to appear-, could not be assigned for error.</p> <p>In a decree for divorce; the Court gave certain property to the wife for alimony, instead of a sum in gross. Held, under the R. S. 1852, that this was error.</p>

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

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

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

<p>When a negotiable note is put in circulation and lost before due, if it is not shown-to have been indorsed, it must be made to appear not only that the note has been lost, but also that it was not indorsed; but if the note is lost after due, the fact that it was not indorsed need not be shown.</p> <p>If the Court, having instructed the jury erroneously upon a point, afterward correct the mistake by giving a legal charge on the subject, the error is cured.</p>

<p>A contract for or about any matter or thing which is prohibited and made unlawful by statute, is void, though the statute itself does not mention that it is so.</p> <p>Assumpsit by A. andB. against C., upon a written agreement made in 1840, whereby C. agreed that if A. and B. would delay the collection by execution of certain judgments rendered in the Marion Circuit Court, on, &c., for a term specified, he would pay to A. and B., in addition to the legal rate of interest upon the judgments, 4 per cent, per annum thereon till paid, and also the amount of exchange, at the time of payment, between Indianapolis and Philadelphia, on the amount of the judgments and interest. The declaration alleged that the agreement was made in Marion county, in this state.</p> <p>Held, that the agreement was for the forbearance of money.</p> <p>Held, also, that if the parties did not intend to violate the statute prohibiting usury, there was no usury in the transaction.</p> <p>Held, also, that as the agreement was made in Marion county, and the judgments rendered in the Marion Circuit Court, the presumption was, the contrary not appearing, that the parties resided in that county.</p> <p>Held, therefore, that the stipulation in regard to exchange, must be presumed to have been intended merely to cover illegal interest, and, hence, that the agreement was usurious.</p>

<p>Where the Court has given an erroneous instruction which is applicable to the issues, it will be presumed to have had an influence, unless the contrary is shown; but where the Court has refused an instruction, it will be presumed ■ to have been refused as being inapplicable to the evidence, unless the contrary appears.</p>

<p>A special contract for work and labor, having been in part performed, was rescinded and abandoned by mutual consent of the parties, and work and labor in continuation of that done under the contract, were subsequently performed. Held, that the special contract did not govern in ascertaining the price and determining the article with which payment was to be made.</p>

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

<p>"^here several notes, falling due at different times, are secured by a mortgage, the first due has the priority, and the others come in, in the order in which they mature.</p> <p>The assignment of one of several notes secured by mortgage, carries with it the security afforded by the mortgage.</p> <p>The holder of a mortgage given to secure the payment of several notes, can not, by an assignment of the mortgage, divest the lien of a third person to whom one of them has been assigned.</p>

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

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

<p>Objections to the jurisdiction of the Court over the person must be taken in limine—by demurrer, if the want of jurisdiction appears upon the record, and by plea or answer setting up the facts showing the want of jurisdiction, if the facts do not appear upon the record.</p> <p>Bill for the rescission of a contract concerning the sale of a patent right, on account of fraudulent representations, &c., excusing delay, &c., held to be sufficient on demurrer.</p>

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

<p>A suit having been dismissed on the defendant’s motion, by the Court of Common Pleas, the plaintiffs caused an exception to the dismissal to be noted at the end of the record entry; but the grounds of objection were not specified, * nor did the plaintiffs take a bill of exceptions. Held, under the R. S. 1852, ** that an appeal would not lie.</p>

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

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

<p>Motions for the continuance of causes are founded upon ex parte affidavits, made by the party or his agent, which, for the purposes of the action, are taken as true, and against which no counter affidavits can be received.</p> <p>The time at which an indictment alleges a crime to have been committed, is immaterial, except where the indictment may be barred by lapse of time, in which case a time must be stated within the period of limitation, and except where time forms an essential ingredient of the offence.</p> <p>Application for a continuance by a prisoner indicted for murder. The affidavit showed that the prisoner desired the continuance to procure the testimony of witnesses to prove that after the time the crime was “imputed” to have been committed by him, the person alleged to have been murdered was seen in another county, &c.</p> <p>Held, that the word “imputed” must be supposed to refer to the time specified in the indictment, and that, therefore, the affidavit was properly held to have been insufficient.</p> <p>Held, also, that to have made the time material, the prisoner’s affidavit should have stated that he apprehended the state would attempt to prove that the person alleged to have been murdered was killed before the day on which he proposed to prove him alive by the absent witnesses.</p> <p>In an affidavit for a continuance to procure testimony, it is not sufficient to aver that the testimony sought will be material; but facts must be stated showing the connection between the testimony sought and the case tobe tried.</p> <p>In support of the prisoner’s affidavit for a continuance, one of his counsel filed his affidavit stating, in substance, that he had been assigned as counsel for the prisoner after the return of the indictment; that he had given all diligence to the preparation for a trial since his appointment that was consistent with other pressing engagements in Court, his own feeble health and the inconvenience of consulting with the defendant while in prison, and with other counsel associated with him in the defence; that the prisoner was not yet ready to proceed to a trial, owing to the short time allowed to prepare for it, (the indictment having been found at that term,) and to a disappointment in procuring the aid of other counsel from a distance, whose attendance had been expected, but who had not arrived. Held, that the affidavit was not adapted to the motion to continue, but might have been appropriate to a motion to postpone the trial to a later day of the term.</p> <p>An application for a change of venue, in a criminal cause, on account of excitement or prejudice against the prisoner, is, by the E. S. 1852, addressed to the discretion of the Court.</p>

<p>The general highway act of 1849 gave to the boards of commissioners jurisdiction of the opening of highways, and also gayo an appeal from their decisions to the Circuit Court.</p> <p>The county auditor was authorized, under the U. S. 1843, to administer the oath concerning the putting up of notices of an intended application for a highway, and that the petition was signed by the requisite number of freeholders.</p> <p>A petition, under the act of 1849, to the board of commissioners for the location of a highway, stated the names of the owners of the lands through which the contemplated road would pass, but did not state who occupied them.</p> <p>Held, that the omission was an immaterial one.</p> <p>Held, also, that it could not affect the jurisdiction of the board.</p> <p>It was not necessary, under the act of 1849, that a petition to the board of commissioners for the location of a highway, should be signed by more than one person.</p> <p>A person appeared to an application to the board of commissioners to locate a highway, remonstrated, and had assessors appointed on his own motion.</p> <p>Held, that he could not afterward object that proper notice had not been given of the application for the highway.</p>

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

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

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

<p>An infant is concluded by proceedings under tbe Probate act of 1838, instituted for his benefit, unless such proceedings were tainted with fraud, and he is not allowed, for any other cause than fraud, to open them on arriving at full age; but, on attaining to his majority, he may open proceedings instituted, under that act, against him, by petition for a review in the Court in which they were had. In all other cases, by the B. S. 1838, he is entitled to his- writ of error at any time within five years after the disability of infancy is removed.</p> <p>Semble, that, in the first instance, the only remedy of the infant is upon the bond of the guardian, or other person who undertook to act for him or to use his name. In the second instance, where the proceedings are against him, he may, on the result of the review allowed being unsatisfactory, appeal to the Supreme Court on the usual terms. The third instance embraces all proceedings in suits at common law, as distinguished from theso special proceedings under statutes.</p>

<p>¡A party can not prove in support of his title, the contents of a deed which has | been destroyed by his own voluntary act or consent.</p> <p>A demurrer was sustained to a paragraph of an answer, but the plaintiff, to maintain his case, was compelled to enter upon a course of evidence that covered the ground set up in the paragraph, and rendered evidence of the facts alleged therein admissible. The defendant also adduced evidence to prove those facts. Hdd, that whether the Court erred in overruling the demurrer, was unimportant.</p> <p>A title vested by deed in several persons jointly, can not be divested by the destruction of the deed by one of the grantees, without the consent of the others.</p> <p>The voluntary surrender and destruction of an unrecorded deed, may, perhaps, have the effect of' divesting the title of the grantee, by estopping him afterward from proving the contents of the instrument.</p>

<p>A Court of equity can, not dispense with a statute or a contract, yet it may exercise its discretion in regard to enforcing it.</p> <p>The act transferring the Wabash and Erie Canal to trustees, for the benefit of the creditors of the state, and the act of January 27, 1847, supplementary thereto, do not render it imperative upon the trustees to construct side-cuts; nor make it the duty of the trustees to reconstruct any part of the canal which was completed by the state, in order to enlarge the supply of water.</p>

<p>A note was made payable ninety days after date, and if not paid at maturity, to bear interest at the rate of, &c., the interest to bo payable annually. Seld, that the note, if not paid at maturity, was to draw interest from that time only, and not from date.</p>

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

<p>When the Court is requested, at the proper time, to give its charge to the jury in writing, the whole charge should be in writing and should be given literally as it is written.</p> <p>When the evidence is not in the record, a state of facts will be presumed to which the substance of the instructions given to the jury was applicable.</p>

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

<p>Rule 30 of the Supreme Court provides, that “in every bill of exceptions purporting to set out the evidence upon motion for a new trial overruled, the words ‘this was all the evidence given in the cause/ are to be regarded as technical, and indispensable to repel the presumption of other evidence.” A bill of exceptions, taken after the rule took effect, after setting out certain evidence, on motion for a new trial overruled, concluded the statement with the words, “whole testimony.” Held, that the Supreme Court could not presume that the bill of exceptions contained all the evidence.</p>

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

<p>Action, for use and occupation, and other money demands on contract. It was proved that by contract between the parties, the plaintiff was to he compensated for the use and occupation, by the delivery of specific articles to him by the defendant, and that they had been delivered pursuant to the contract. The residue of the plaintiff’s demands not amounting, according to the evidence, to 50 dollars, judgment was rendered for the plaintiff for a sum less than 50 dollars, and against him for'costs. Held, under the B. S. 1852, that the judgment for costs was right.</p>

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

<p>Recoupment will be allowed whenever an action for damages can bo sustained and circuity of action thus avoided.</p> <p>Courts will favor recoupment rather than drive a party to a separate action.</p>

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

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

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

<p>An action will not lie against an administrator appointed in one state, on a decree against a different administrator of the same intestate appointed under the authority of another state.</p>

<p>A mortgage, held as an indemnity, can not be foreclosed until the mortgagee has had something to pay, or has otherwise been injured.</p> <p>Bill by A. against B. and C. to foreclose a mortgage. The bill stated that in 1841, A. owned two fa-acts of land, which he had mortgaged to the state to secure the repayment of a loan of 500 dollars from the sinking- fund; that he sold and conveyed one of the tracts to B. and that B. agreed to pay 500 dollars of the purchase-money, by satisfying said mortgage, and especially by-releasing the tract retained by A. from the incumbrance; that instead of paying off the mortgage, B. allowed the lands to be forfeited and to be sold by the state, became the purchaser, and took a certificate in the name of C.; that aftern rd they executed to A. their joint mortgage of the tract previously sold by A. i B., which recited the foregoing facts, and that by the terms of the sale by the commissioners of the sinking fund, the money would not all be due until the 15th day of August, 1849, and that it was given to secure to A. the payment of said mortgage to the state, or of releasing and discharging A.’s tract from it and the effect of said sale. The condition corresponded with said recitals, but fixed no time for the payment of the debt due to the state. Averment, that the debt to the state was still unpaid, and that B. and C. had not released A.’s tract from the mortgage, nor from the effect of said sale, and that A. was in danger of losing his land. Prayer for foreclosure, a sale of the land, and that the certificate of purchase of A.’s tract might be assigned to him or that the tract might be otherwise conveyed, &c. Decree pro confesso, upon a default, requiring B. and C., within ninety days, to pay the mortgage debt to the state, and convey to A. the tract owned by him, or to pay into the clerk’s office 400 dollars for A.’s use, which the Court found to be the value of that tract; and that, in default thereof, both tracts be sold, subject to the mortgage.to the state, and the proceeds paid to A.; and that on such sale being made, O. should assign to the purchaser the sinking fund certificate held by him.</p> <p>Held, tliat the mortgage of B. and C. to A. was simply an indemnity to A. to protect his land against the claim of the state.</p> <p>Held, also, (there being no allegation that the interest on the mortgage had been left to accumulate unpaid, nor that A. was likely to be disturbed in his possession or put to expense or trouble) that the bill was filed prematurely. Held,siso, that the statement in the bill that A. was in danger of losing- his land, was negatived by the statement that the tract sold to B. was valued at 1,000 dollars, because the commissioners of the sinking fund, upon being notified of A.’s equity, would be compelled to sell that tract first, and, upon a refusal, equity would interfere at A.’s instance.</p> <p>Held, also, that had the bill shown a proper case for relief, on the ground that</p> <p>A. stood in the relation of a surety, and was liable to suffer for a default of</p> <p>B. and C., the commissioners of the sinking fund should have been parties. Held, also, that it was unnecessary to decree a conveyance of A.’s land to himself, or an assignment of the certificate, G. being estopped by the recitals in the mortgage to A. from claiming anything under his purchase.</p> <p>Held, also, that said recitals operated to cancel the certificate, and, at least until some improper use was sought to be made of the certificate, furnished no ground of equitable jurisdiction.</p> <p>A mortgage is but a security and the mortgagor is the owner of the land. Pay, ment is an absolute discharge of the property from the claim of the mortgagee.</p>

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

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

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

<p>In case of the elopement of a -wife, the husband will still be liable for necessaries furnished her, until it has become notorious that she has withdrawn herself from his care and protection, or the creditor’s knowledge of the fact is proved.</p> <p>A judgment will not be reversed on account of an erroneous instruction, when it is apparent that the jury were not misled by it, or where it is fully supported by the evidence.</p>

<p>In the case of a petition by an administrator to sell veal estate, under tbe E. S. 1838, service of notice on the heirs of the intestate, in some mode recognized by law, was an essential requirement of the statute.</p> <p>Process must be served on infants in the same manner as if they were adults. Petition, under the E. S. 1838, by an administrator, to sell real estate. The record did not show affirmatively that the defendants (who were minors) wore notified of the pendency of the suit, nor that they were present in Court; but it appeared that a guardian ad litem, was appointed, who “ waived the service of process and consented to a sale of the landand that the Court thereupon ordered the sale.</p> <p>Held, on error, that it must be presumed that the defendants were not notified of the suit nor present in Court; and that the order of sale was consequently erroneous.</p> <p>Held, also, that it was error to grant the order without proof of the allegations in the petition, in the same manner as if they had been denied.</p>

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

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

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

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

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

<p>Motion by a non-resident defendant, within five years after the rendition of a decree, to open the same, on the ground that though publication of the pendency of the suit had been made, yet he had not received actual notice thereof, &c. The motion was supported by affidavit, and an answer to the bill was filed. The plaintiffs in the original bill thereupon offered to prove by a witness that the defendants to the bill had had notice of the suit, before the decree was rendered, by a letter received from one of the plaintiffs. Hdd, that the evidence offered, if taken as true, did not show that the defendants, had received a sufficient notice.</p>

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

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

<p>Parol evidence of the contents of a written receipt is not admissible, until a valid and legal excuse has been given for the non-production of the receipt. When a paper, the contents of which are necessary to be used in the proseeution or defence of a suit, is in the possession or control of the adverse party, notice should be given to Mm or his attorney to produce it, and if, upon such notice, it is not produced, its contents may be proved by parol.</p> <p>The rule that it must appear that the grounds of objection to evidence were stated when the objection was made, applies to cases in which the evidence was admitted, and not to those in which it was rejected.</p>

<p>In a suit against a railroad company, a stockholder is a competent witness for the company.</p>

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

<p>Under our statute, the assignor of a note warrants that the maker is liable on the note and able to pay it.</p> <p>But if the assignee neglects to use due diligence in suing the maker, and seeks to have recourse upon the assignor, he must prove the inability of the maker, from want of property liable to execution, to pay any part of the debt.</p>

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

<p>That a note and mortgage were procured by fraud, may be set up as well in a suit by an assignee as in a suit by the person to whom they were made. Where a party enters into a contract, upon an inadequate consideration, under circumstances of pecuniary embarrassment, and weakness of mind occasioned by habitual drunkenness, and the person with whom he contracts is enterprising and sagacious and takes an unconscioniious advantage, a Court of equity will set the contract aside.</p> <p>A person who, with his eyes open, purchases property at a price greatly exceeding its value, can not obtain relief in equity on that account; but when the purchase, at such price, is a mere condition to the obtaining of a loan, equity may grant relief.</p>

<p>If a tract of land be sold with a representation that it contains a certain number of acres, and there be a deficiency in quantity, the vendor, if he prefers to retain the land, and to set up the misrepresentation in reduction of the price, is entitled to an abatement of the purchase-money for so much only as the quantity falls short of the representation.</p> <p>If the vendor falsely represent that the tract contains a particular parcel of land—which is of no value except for the site of a mill-dam—the vendee would seem to he entitled to no greater abatement of the purchase-money than the cost of procuring it.</p> <p>In a suit by the vendor to recover one of several instalments of purchase-money, if the purchaser, by reason of false representations of the vendor, is entitled to an abatement, though to an amount less than subsequent instalments, it is his right to have that abatement made in such suit.</p> <p>tA. sold a mill to B. At the tíme of the sale, A. had in Ms service, as miller, one G., who, after the sale, continued in the mill, in the same employment, as the servant of B. A., when he sold the mill, had a quantity of wheat of his own therein, which he left, after the sale, to be manufactured into flour, which fact C. knew.</p> <p>jETeld, that B., under the circumstances, became a bailee of the wheat for re- ; ward—responsible for its safe keeping and for the return of the flour manufactured therefrom to A.</p> <p>Held, also, that whether B. had personal knowledge that A. had so left the wheat, was unimportant.</p> <p>Held, also, that if B.ov his servants used or disposed of the wheat, assumpsit would lie against B., without any previous demand of the wheat.</p>

<p>A. executed to B. a writing under his hand and seal, as follows: May 14, 1836. This is to show that I allow to give B. 250 dollars, to be paid in two years after date, &c.</p> <p>Held, that an action could not he maintained on the instrument.</p> <p>Held, also, that the instrument could not be aided by the averment of a valuable consideration for which it was executed.</p>

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

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

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

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

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

<p>The bill in this case was ordered to be dismissed, because it was not adapted to any form of relief to which the plaintiff was entitled.</p>

<p>Parol evidence to establish a resulting trust must be received with great caution.</p> <p>Bill by Á. and the heirs of B. against O.’s heirs, to enforce a resulting trust. The bill was filed in July, 1841. The facts were as follows: O', being about to proceed upon a jotirney to enter lands, his mother placed in his hands 100 dollars, directing him to purchase therewith a tract of land for her sons A. and B. With this and money of his own, C. entered several tracts, taking the titles in his own name. He died in 1835.' A. was a minor until near that time, and B. until sometime afterward in 1835. A. and B. had frequently claimed of 0., in his lifetime, their share of the land, &c. It was not shown that six years had elapsed after A. attained to Ms majority, before the bill was filed, and it was shown that B. arrived at age within that time.</p> <p>Held, that the receipt of the money from the mother by C., with the directions given, and the subsequent purchase of the land by C. in his own name, created a resulting trust in favor of A. and B.</p> <p>Held, also, that A., having improperly taken all the titles in his own name, neither he nor Ms heirs could object that the subject of the trust was uncertain.</p> <p>Held, also, that, as in the case of the confusion of goods, G.’s heirs must suffer the inconveniences in ascertaining the land to which A. and B. were entitled, growing out of the fraudulent conduct of C.</p> <p>Held, also, that A. and B. were not barred of the relief sought by lapse of time.</p> <p>Money placed in the hands of one for the benefit of another, by a tliird person, may be recovered in equity by the cestui que trust.</p>

<p>A., by bis will, devised to each of bis sons a tract of land, reserving a life estate out of one tract to his wife. He also gave specific and pecuniary legacies to hie two daughters, with a residuary clause disposing of all his property, goods and chattels that might remain. The fourth clause in the will was as follows: “I also give and bequeath unto my son” B. “the south-east quarter of,” &e. Held, that the fee in the land last named passed to B.</p> <p>If, upon examining an entire will, the intention to pass a fee is apparent, a fee will pass, although the word heirs is not used.</p>

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

<p>A. mortgaged goods to B. (while the R. S. 1843 were in force) which, after the delivery of the mortgage, were levied upon by execution as the property of A. There was a stipulation in the mortgage that until condition broken, A. should retain possession of the property. The condition having been broken during the continuance of the levy, B. brought his action against tho sheriff (more than ten days after the execution of the mortgage) to try the right of property. Held, that it -was incumbent upon B. to show that the mortsage had been recorded within ten days after the execution thereof.</p>

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

<p>An award that one of the parties to the submission shall pay so much to the creditor of the other party is good; and a suit may be maintained by the creditor for the sum awarded.</p> <p>The circumstance that the party directed to pay such sum is by virtue of an assignment the trustee of the adverse party, for the benefit of his creditors, does not mate a demand of the sum awarded necessary before suit brought.</p> <p>Questions arising in the record were treated as waived by not being noticed by counsel, under a rale of the Court.</p>

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

<p>A bill of exceptions showed that evidence offered was objected to, hut the ground of objection was not pointed out nor exception taken at the time of its admission. Instructions were also given and refused, and, at the end of the hill of exceptions, taken after the return of the verdict, was the following statement: “To all of which judgments and rulings, &c., the defendant objects and excepts,” &e. The trial was before the R. S. 1852 were in force. Held, that errors could not he assigned on exceptions thus taken.</p>

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

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

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

<p>Action for overflowing the plaintiff's land by the erection and continuing of a mill-dam. Answer, in denial merely. The defendants offered to prove on the trial that the mill and dam were a benefit to the plaintiff and to the public. Held, that the evidence was inadmissible.</p>

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

<p>A. was convicted for retailing spirituous liquor. There was evidence tending to show that the liquor was purchased for a medicinal purpose, hut it appeared not to have been sold for that purpose. Held, that the conviction was proper.</p>

<p>A. died intestate, seized of several tracts of land. His widow was also the owner, in her own right, by inheritance from B., of a tract of land adjoining A.’s. O. being about to purchase the interests of several of A.’s heirs, and supposing A. to have been the owner of said tract belonging to his widow, but a question having arisen in regard to the fact at the time of the execution of the conveyance, the widow assured O. that the tract so owned by herself was parcel of the lands left by A., and 0. accordingly reeceived a conveyance from said heirs of A., describing the premises conveyed as their interests “in the land owned by A. at the time of his death.”</p> <p>Held, that the widow, even though she might have been ignorant of her legal rights in the land inherited from B., was estopped from afterward asserting her title therein as to so much thereof as would have passed to C. by the conveyance, had the same been parcel of the lands left by A.</p> <p>Held, also, that the circumstance that the representations of the widow were not in writing, was of no importance.</p>

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

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

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

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

<p>The seminary fund, in the progress of the erection of a county seminary, having been exhausted, the board of commissioners advanced a sum out of the county treasury to complete the building, anticipating the revenue of said fund to the amount advanced. The constitution of 1851 having subsequently been adopted, and the seminary sold pursuant to its provisions, held, that the debt for the sum advanced out of the county treasury, ought to he paid out of the purchase-money.</p>

<p>It was competent for the legislature, under the constitution of 1816, to legalize, by a retrospective enactment, a sale of an infant’s land, made under an order' of the Probate Court, without appraisement.</p>

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

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

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

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

<p>PETITION for the writ of Habeas Corpus.</p>

<p>Section 9 of art. 7 of the constitution, does not prohibit the legislature from dividing existing judicial circuits, or making new circuits, whenever they choose to do so.</p> <p>A statute creating a new circuit out of others then existing, is not liable to any constitutional objection as being local.</p> <p>Where the constitutionality of a statute is merely doubtful, it is the duty of the Courts to sustain it.</p> <p>The legislature can not, by a declaratoiy enactment, make a vacancy in an office created by the constitution.</p> <p>An existing office, without an incumbent, is vacant, within the meaning of the constitution.</p> <p>When a new circuit is created, it is competent for the governor to appoint a judge thereof, to hold his office untE a judge shall be elected.</p> <p>By the B. S. 1852, a conviction and sentence of a person for a crime does not render him incompetent as a witness.</p> <p>The evidence of an accomplice should be carefully scrutinized by the Court and jury; yet the jury may convict upon such evidence, even though it be unsupported by any corroborating testimony.</p> <p>'The corpus delicti, in a prosecution for murder, may be proved by circumstantial evidence. It is not essential that the body of the deceased should be found.</p> <p>On the trial of a prisoner for murder, the Court instructed the jury as follows: “ The jury have the right to determine the law and the facts, but it is the duty of the Court to instruct the jury what the law is.” Held, that the instruction was correct.</p> <p>The Court also instructed the jury as follows: “To kill a man purposely and with premeditated malice, or to kill a man in the commission of or the attempt to commit a crime—such as a robbery or arson—is murder in the first degree. And it is no difference (in the attempt to commit arson) whether he is killed before the fire reaches him or he is burned to death.”</p> <p>Held, that the instruction was proper.</p>

<p>The constitution of the state, in relation to the acts of the legislature, is the supreme law of the state; and in ease of conflict, the acts of the legislature must yield, as being void.</p> <p>It is the duty of the Courts, in every case before them for decision, to decide and declare the law governing the case.</p> <p>Where the compatibility of a statute with the constitution is in question, the Courts must determine the meaning of both, and whether they can stand together.</p> <p>The duty of the Courts to give construction to laws, and to declare legislative enactments void or inoperative as being in conflict with the constitution, grows, of necessity, out of the other duty of declaring what the law is.</p> <p>The act of 1855 creating the twelfth judicial circuit, so far as it relates to the creating of that circuit, is constitutional.</p> <p>But the section of that act which declares that a vacancy exists in the office of judge and requires the governor to fill it, is unconstitutional.</p> <p>The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority.</p> <p>The appointment by the governor of the honorable John Pettit as judge of the twelfth judicial circuit, on the ground that there was a vacancy, the circuit having been newly created and there having been yet no incumbent of the office, was valid.</p> <p>Indictment for murder. Certain jurors were examined in relation to their competency, who stated that they had heard considerable talk about the case, and had read the newspaper accounts of it; that they were rather inclined to think, if what they had heard was correct, the prisoner was guilty; that they had never talked with any of the witnesses, had never formed or expressed an opinion, had no ill-will against the prisoner, and could give him a fair trial according to the law and evidence. Held, that the jurors were competent.</p> <p>A juror may be regarded as reasonably unexceptionable, who has capacity, honesty, independence, and freedom from prejudice and from any opinion founded upon the particular evidence given in the cause.</p> <p>On the trial of a prisoner for the murder of A., the Court permitted a witness to detail statements made to him, the witness, by one B., in the absence of the prisoner, and ten days before the murder was perpetrated; it having first been proved by the state that the prisoner and B. were present at and participated in the murder of A. Sdd, that the evidence was properly admitted.</p> <p>The statute authorizing capital punishment for the crime of murder, is not in conflict with the constitution.</p> <p>It is competent for the legislature to confer upon the jury the right to determine, in each particular case, whether capital punishment or imprisonment for life shall be inflicted for the crime of murder.</p>

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

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

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

<p>Slander. The complaint alleged that on, &e., the defendant spoke the following false and slanderous words of the plaintiff, that is to say, he (meaning the plaintiff) swore a lie; * * * he (meaning the plaintiff) swore a lie before B. (meaning A. B., a justice of the peace,) and I can prove it; by which plaintiff is damaged, &c. Held, that the complaint was insufficient on demurrer.</p> <p>To say of a person that he swore to a lie, is not actionable per se. The words can only become so by reference to a judicial proceeding in which the person is alleged to have testified falsely.</p> <p>Bonn number 17, p. 346, 2 R. S. 1852, may be used wherever it is applicable; but it does not apply to a case where the words to be inserted are not slanderous per se, unless there be added averments to make them actionable.</p> <p>The spirit of the code of 1852 is, that the parties shall place upon the record, in the form of averments, the real facts of the case, eschewing all fictions and repetitions.</p> <p>Where a form given by the statute dispenses with an averment which would otherwise be material, the statute, by declaring the form sufficient, stands in the place of the averment.</p>

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

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

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

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

<p>A judgment will not be reversed because tbe Court gave an erroneous instruction, if the instruction was harmless.</p> <p>When it is sought to charge one for the act of a special and not a general agent, it must be shown that the act done was within the scope of the agency.</p> <p>If the agent, after his authority has been revoked, still continues to act within the scope of the agency, and it is sought to charge the principal for his acts, the burden of proof is upon the principal to show that the agency was terminated before the acts were done.</p> <p>If one permit another to hold himself out to the world as his agent, he thereby adopts his acts, and will be bound to a person who gives credit to him as such agent.</p> <p>Complaint against A. and B. upon a note. Answer, denying the allegations of the complaint. The execution of the note was denied under oath by B. only. Held, that as to A., its execution was admitted.</p>

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

<p>The refusal of an instruction which is pertinent, is not error, if the Court has given it substantially in another instruction.</p> <p>A promise by A. to B., with the consent of C., that if B. will extend the time of payment of a debt due by C. to B., and also furnish goods to C. on credit, he, A., will retain money coming to O., and pay B. the debt, and also for the goods, is valid and binding, though not in writing.</p> <p>If the promise be merely by A. to G. thus to pay B., the latter may maintain an action against A. on the promise.</p>

<p>A material averment in a complaint, not controverted by the answer, is regarded as admitted.</p> <p>The relation between a railroad company and a stockholder is one of contract, and any legislative enactment which, without the assent of the stockholder, authorizes a material change in the powers or purposes of the corporation, not in aid of its original object, is not binding upon him.</p> <p>After a public act had taken effect authorizing the consolidation of the charters of two railroad companies, A. subscribed five shares of stock to one of them. The consolidation having afterward taken place, A. was sued by the new company upon his subscription.</p> <p>Held, that A. was liable.</p> <p>Held, also, that tire circumstance that the consolidation may have taken place without his personal knowledge or consent, was of no importance.</p>

<p>That a demurrer to a paragraph in an answer was improperly sustained, can not be assigned for error, if the facts alleged in it were admissible in evidence under another paragraph upon which issue was taken.</p>

<p>In a suit against a bank organized under the general banking law, to recover the amount of a deposit, the stockholders may properly he joined as defendants ; yet it is not necessary that they should be.</p> <p>Though the stockholders, in such suit, may not have been made parties, yet they are bound by the judgment, in an action against them individually, after a failure to make the money from the hank.</p>

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

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

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

<p>A negro man residing in this state, by marrying a negro woman who has come into the state since the adoption of the constitution, and living with her, is liable to a fine by virtue of the 13th article of the constitution and the act of 1852 to enforce its provisions; and the marriage itself is void.</p>

<p>Section 3 of the act providing for the organization of Circuits Courts, &c., approved June 1, 1852, is remedial (being intended to prevent any inconvenience or failure of justice in case of the disability of the circuit judge) and is to be liberally construed.</p> <p>The section being remedial, and in some measure directory, a substantial compliance therewith is sufficient.</p> <p>An instruction relating to the evidence, will be presumed to have been correct, if the evidence is not set out in the record.</p> <p>A denial under oath of the delivery of an instrument which is the foundation of an action, is, in effect, a denial of its execution.</p>

<p>A party is not obliged, as a general rule, to adopt any particular order in the introduction of testimony: lie may prove the various facts in Ms case in the order.which he prefers.</p> <p>Sheriff’s sales of real estate are within the statute of frauds; and unless the sheriff, when he strikes off the property, makes some note or memorandum of the sale, he can not compel the purchaser to comply with the terms thereof.</p> <p>But if, when the land is struck off, the vendee pays the purchase-money, and receives a deed during the lifetime of the execution, the circumstance that no memorandum of the purchase was made by the sheriff at the. time of the sale, wiE not affect the vaHdity of his title.</p> <p>A parol contract for the sale of land, is voidable merely, and not void: the • statute does not whofly vacate it, but inMbits the bringing of an action to to enforce it. The parties may execute it, if they choose; but they can not be compeEed to do it.</p>

<p>A conveyance of land by an infant is voidable merely, and not void.</p> <p>Infancy is never presumed. As a ground of relief, it must be shown, and as a ground of defence, it must either be pleaded or given in evidence.</p> <p>An infant’s conveyance of land by bargain and sale, may be disaffirmed, on his attaining to majority, without entry, by a conveyance to another person. It is not necessary to return the purchase-money, in order to disaffirm such conveyance.</p>

<p>Action upon certain drafts drawn by the president of a railroad company upon the treasurer, for tbe payment of certain sums of money, &c. The paragraphs upon tbe drafts did not allege that tbe drafts had been presented for' payment, nor show any excuse for not presenting them. Held, that they were bad.</p> <p>Where a debt is due from a corporation, and it is the duty of one officer, or set of officers, to allow demands, and draw upon another officer who has the custody and is charged with the duty of disbursing the funds, for payment, the order must, as a general rule, be presented, in a reasonable time, for payment.</p>

<p>The defendant, by suffering a default, under the B. S. 1852, admitted the truth and sufficiency of the complaint; but since the statute of 1855, the rule is otherwise.</p> <p>A motion in arrest of judgment is an affirmance of the verdict, and precludes a motion for a now trial.</p> <p>After a default and an inquest of damages, the defendant moved for a new trial.</p> <p>Held, that the motion was not a proper one.</p> <p>Held, also, that the proper motion would have been to set aside the inquest.</p>

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

<p>If after answer filed the defendant withdraws his appearance, it would seem that the answer is thereby withdrawn, and that judgment may be rendered by default. At all events judgment nil dicit might be rendered.</p> <p>After answer filed, the defendant withdrew his appearance; whereupon the Court proceeded to try the cause, upon the evidence, and found for the plaintiff. No exception was taken. Held, on appeal, that there was no question before the Supreme Court.</p>

<p>The plaintiff having recovered a judgment against the defendant, the latter moved the Court to tax the costs of several witnesses who had been summoned by the plaintiff and not examined, against him. Only a part of the record was before the Supreme Court, and it not appearing necessarily from it that the Court must have erred, held, that every presumption was in favor of the action of the Court. Held, also, that the motion should have been supported by an affidavit of merits.</p> <p>The statute authorizing questions of law to bo reserved and to be brought to the Supreme Court on a part of the record only, requires that the bill of exceptions, or some other part of the record, shall show that the party notified tlie Court of his intention to bring up the case upon the question reserved, giving the Court an opportunity to determine what part of the record would present the question truly.</p>

<p>The constitution of Illinois adopted in 1818, clearly recognizes the legal corporate existence of the Bank of Illinois, previously chartered by an act of the territorial legislature, and its corporate existence has also been fully recognized by various acts of the Illinois legislature, and especially by an act of 1835, extending its charter for twenty years.</p> <p>If a promissory note be given to a company as a corporation, the maker is estopped (if the corporation could have had a constitutional existence) from denying that, at the date of the note, the company was a corporation.</p> <p>To hold legislative enactments of a sister state invalid, on the ground of a supposed conflict with the constitution of that state, and especially when the legislature of such state has, by repeated enactments, recognized them as valid, would be a delicate matter, and would require a case free from doubt.</p> <p>By the provision in the constitution of Illinois prohibiting all other banks or monied institutions but those already provided by law, except a state bank and its branches, banks then in being- were exempted from the prohibition, and might be continued during the pleasure of the legislature.</p> <p>The general act of the legislature of Illinois, passed in 1833, limiting the rate of interest to 12 per cent., upon special contracts, can not be regarded as part of the charter of the Bank of Illinois, nor as conferring any rights on that institution.</p> <p>A corporation must be governed by the law which created it, and by those legislative enactments which in terms apply to it.</p> <p>At the common law a contract tainted with usury was void.</p> <p>The act extending the charter of the Bank of Illinois, authorized interest to he taken upon loans for six months or under, at the rate of 6 per cent, per annum, and upon loans for a longer period than six months, at the rate of 8 per cent, per annum. There was also an act of the legislature of that state adopting the common law. The defendant executed to the bank a note for 2,000 dollars, payable six months after date, with a stipulation for the payment of interest at the rate of 8 per cent, per annum after maturity. Held, that the contract was not usurious.</p> <p>The rules of construction applicable to legislation on subjects in which the people at largo are interested, are essentially different from those which apply to private grants, to individuals or artificial persons, of powers and privileges conferred to be exercised with special reference to their own advantage. The former are to be expounded liberally and beneficially, to effectuate the purposes for which they were created; the latter are to be construed strictly as against the grantees.</p> <p>The legislature of Illinois, in 1843, passed an act to put the Bank of Illinois into liquidation, and, in 1845, a supplementary act was passed, which provided that all the effects of the bank should be transferred to four assignees. It then required that the real estate should be conveyed to all the assignees jointly, and that the personal effects of the bank at S. and of the branch at L. should be assigned to A. and B., and of the other branches to the other assignees; but it did not require that it should be done jointly, with or without the right of survivorship. The bank afterward assigned the note upon which the present suit was brought, (which belonged to the bank at S.) to A. and B. and the survivor, and A. having died, B. brought suit upon the note.</p> <p>Held, that an assignment of the note to A. and B., with the right of survivor-ship, was authorized by the act.</p> <p>Held, also, that the circumstance that the act contained a provision for filling vacancies, and that the vacancy occasioned by A.’s death was not filled, did not render the assignment inoperative.</p> <p>Held, also, that the assignment, independent of the statute, created a common law right, which the creditors of the bank had a right to have enforced for their benefit, whether by both assignees or by the survivor, and whether in or out of the time prescribed by the act.</p> <p>Held, also, that B. had a right, in this state, whether clothed with the legal title or not, to sue as a trustee upon the note.</p> <p>The 17th section of said act of 1845 was not designed to limit the assignees to sue within four years; nor was the act of 1849 “for the relief of the assignees” of said bank," audio extend the time for the liquidation of the affairs of said bank,” designed to limit their right to sue to January 1, 1851.</p> <p>It is a general rule in the construction of remedial statutes, that the time within which an act is to be done is not to be treated as essential, unless it is made so by the act in express terms.</p> <p>An extinguishment of the debts due to a corporation, follows upon its dissolution, only where there is no legal provision to prevent it.</p> <p>The debts duo to the Bank of Illinois, after the assignment thereof to trustees for the benefit of creditors, by the act cited, had the same force in the hands of the assignees, after the dissolution of the corporation, as the rights and credits of deceased persons in the hands of their representatives.</p> <p>A seizure of the property of a corporation is different from a forfeiture and seizure of its franchises.</p>

<p>Demurrer to three several paragraphs of an answer, as follows: The plaintiff demurs to the first, second and third paragraphs of the defendant’s answer, for the following grounds of objection: that they are insufficient in law to constitute a legal defence to the action.</p> <p>Held, that the demurrer was not adapted to the practice under the code of 1852.</p> <p>Held, also, that the decision of the Court below, sustaining the demurrer, was therefore erroneous.</p> <p>The Courts must, it is presumed, judicially notice a demurrer, and see that it is in substantial conformity to the statute.</p> <p>It is the safer practice to specify in a demurrer wherein the pleading demurred to is defective—what further facts should have been alleged; but whether that is necessary or not, is not here decided.</p>

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

<p>The plaintiff was employed by a railroad company, with other laborers, to ballast a part of their road, by excavating gravel from certain banks, loading it in the company’s gravel cars, and afterwards unloading and distributing it upon the railroad. The plaintiff, and others of the laborers, boarded and lodged in the town of G., two miles from the gravel banks, and, by agreement with the company, were regularly to be conveyed to town to their meals, &c., and back again to the gravel banks. While the plaintiff was being conveyed, during the period of his service, on a gravel car, to the banks to work, by the gross negligence and unskilfulness of the engineer employed in managing and running the locomotive drawing the car, the locomotive ran into and came in collision with a train of passenger cars belonging to the company; by means whereof the plaintiff’s leg was broken and he was otherwise injured. Held, that the company was liable to the plaintiff for the injury.</p> <p>A railroad company is liable to a servant for an injury occasioned by the negligence of other servants of the company, where the duties of the latter, in connection with which the injury happened, were not common, nor in the same department with those of the injured servant, and where the negligence of the injured servant did not contribute to produce the injury.</p>

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

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

<p>APPEAL from the La Grange Court of Common Pleas. °</p>

<p>A. gave a mare with foal by an ass to 23., stipulating that if she should prove to be with foal, the eolt was to bo M.’s. 23. sold the mare to O., without informing him of the reservation of the colt by Jl.</p> <p>Held, that the reservation of the colt by A., was a valid one.</p> <p>Held, also, that 23.’s possession of the colt was that of a bailee.</p> <p>Held, also, that the sale by 23. to C. (being- that by a bailee of property bailed) conferred no title to the colt upon O.</p> <p>Held, also, that C.’s remedy was against 23., for breach of warranty of title implied in the sale of chattels.</p> <p>The subject of a contract need only have a potential existence.</p>

<p>Tt> a suit upon the covenant of warranty, in a conveyance of land, the main thing to he alleged is the eviction by paramount title, existing at the time of the conveyance. The manner of eviction is matter of evidence, and need not be alleged.</p> <p>In a suit upon the covenant of warranty, where there has been an eviction, the measure of damages, in the absence of fraud, is the purchase-money and interest.</p>

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

<p>While the Wabash and, Erie Canal belonged to the state, the state was exempt, by virtue of her sovereignty, from any suit by reason of its mismanagement; but to effect a great object, namely, the relief of the people from a large part of the public debt, she has transferred her property in the canal to a corporation created by herself, to-wit, the board of trustees of said canal, in which corporation, by virtue of the act of transfer, she has become an associate with her creditors.</p> <p>The circumstance that the board of trustees of the Wabash and Erie Canal were created a corporation by the state, and that the state is a member of the corporation, does not protect the corporation against suits and their incidents.</p> <p>The state has communicated none of its privileges or prerogatives to the board of trustees of the Wabash and Erie Canal, but has placed that corporation on the same level as that of other corporate bodies.</p> <p>A government, as a member of a corporation, never exercises its sovereignty; it acts merely as a corporator, and exercises no other powers in the management of the corporate affairs than are expressly conferred by the act of incorporation.</p> <p>The board of trustees of the Wabash and Erie Canal are not liable for a failure or neglect to repair the canal, at the suit of an individual who grounds his action alone on such failure; but if he has sustained special damages, not common to all others, he may bring his action.</p> <p>Complaint against the board of trustees of the Wabash and Erie Canal, alleging, in substance, that the plaintiff had paid the defendants 3,000 dollars, in consideration of which ho became and was entitled to navigate said canal during the year 1854, and for which it became and was the duty of the defendants to put and keep the canal in navigable order; yet that they did not put and had not kept the same in navigable order, &c., whereby the plaintiff, although always ready, &c., could not and did not navigate the canal, although the defendants had received their toll as aforesaid, &c. Held, on demurrer, that the complaint contained a good cause of action.</p>

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

<p>An administrator de bonis non, as the law stood in 1845, could not sue liis predecessor in the trust for a breach of duty.</p> <p>An act of the legislature authorized the bringing of suit in the name of the state on the relation of an administrator de bonis non, upon the bond of his predecessor, for a breach of duty, though the bond was executed before the passage of the act. Held, that the act was valid.</p>

<p>In a proceeding before the board of commissioners to locate a highway, after a report that the road would be of public utility, A. made his claim for damages in consequence of the highway being located through his land. Assessors were thereupon appointed, who reported that A. would sustain no damages; and the road was ordered to be opened. Held, that on an appeal to the Circuit Court, viewers could not again be appointed to assess A.’s damages.</p> <p>On an appeal to the Circuit Court from a proceeding before the board of commissioners to locate a highway, it does not seem to have been the intention that the same proceedings should be gone through with as are required before the board. Some are clearly not to be repeated, such as the original petition, notice, first view, &e. The object of the appeal is to give the parties the benefit of questions of fact in a Court where a jury can be called, where the rules of law can be applied, and the points in controversy judicially determined,—such as whether the road is of public utility, or whether the objector has sustained damages, and how much, if any.</p>

<p>In a case where the evidence was conflicting, the defendants asked the Court to' instruct the jury that the law of the case, on the evidence, was in favor of the defendants, and that the jury should so find;—also that if the jury believed the testimony of A. and B. (whose evidence did not agree with that of other -witnesses) they must find for the defendants. Held, that the instructions were properly refused.</p> <p>Action against a railroad company for an injury done to the plaintiff, -while traveling on a gravel train of the company. The defendants asked the Court to instruct the jury as follows: A railroad company is not liable for an injury which may happen to a person who takes passage on a train engaged in transporting gravel, and not engaged in carrying passengers. Held, that the instruction was correctly refused.</p> <p>It is not error to refuse an instruction, unless it ought to he given precisely in the terms prayed.</p> <p>Where the principle contained in an instruction which has been refused, is embraced in instructions given, the refusal is not error.</p> <p>In a suit against a railroad company by a passenger, for an injury occasioned by a collision, it is not sufficient for the company to show that the plaintiff was acting at the time in disobedience of a proper order to secure his safety: it should also appear that the injury was occasioned by such disobedience.</p>

<p>A city ordinance authorized the construction of a railroad on either of two streets, through the corporate limits, under suitable restrictions as to grade, &c., to be regulated thereafter.</p> <p>Held, that the ordinance authorized the railroad company (so far as the city had power to do so) to run the road along the street, but not to obstruct the street to the injury of adjoining proprietors.</p> <p>Held, also, that the road was to be constructed on the grade of the street substantially as it then existed, unless an alteration was made (if the city had the power to make it) by a proper municipal regulation.</p> <p>The proper authorities of a city may authorize the construction of a railroad track on a street, at the grade of such street.</p> <p>Besides the right of way which the public have in a street, there is a private right which passes to a purchaser of a lot upon the street, as appurtenant to it, which he holds by an. implied covenant that the street in front of his lot shall forever be kept open for his enjoyment; and for anj^ obstruction thereof, to the owner’s injury, he may maintain an action.</p> <p>The right which the owner of a lot has to the enjoyment of an adjoining street, is part of his property, and can only be taken for public use, on just compensation being made, pursuant to the constitution.</p>

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

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

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

<p>Assumpsit by the payee against the drawer of a bill of exchange. Plea, that the bill having been duly accepted by the drawee, was assigned by the plaintiff, &c.; that it became due, on, &e., and was not paid by either of the parties thereto, until after the defendant, on, &c., had received a certificate under the bankrupt law of the United States, &e.; that on, &c., the plaintiff’s indorsee recovered a judgment upon the bill against the plaintiff, &c., which, on, &e., the plaintiff fully paid; that before such payment, A. had been appointed the defendant’s assignee in bankruptcy, to whom he had surrendered all his property, &c.; that no dividend of such property had yet been made, nor had a distribution been made among the defendant’s creditors j and that the plaintiff, at all times since the defendant became a bankrupt, could have filed his claim, &c. Held, that the plea was substantially sufficient.</p> <p>A demurrer to a replication having been overruled, the defendant obtained leave to withdraw the demurrer, &c., whereupon the plaintiff, by leave, withdrew the replication. Held, that by withdrawing the replication, he waived any objection to the ruling of the Court allowing the withdrawal of the demurrer.</p> <p>It is discretionary with the Circuit Court to allow a party, at any time before entering into final trial, to withdraw a demurrer, and answer the pleading to which it was filed.</p> <p>The indorser of a bill, who has been compelled to pay the same, is entitled to recover the amount from the drawer after he has become a bankrupt, if the claim therefor could not have been proved before the assignee.</p> <p>The discharge in bankruptcy of a surety, is no bar to an action against him by a co-surety, who has paid the debt, for contribution.</p> <p>The relation of cosureties does not arise between the drawer and indorser of a bill, from the fact that the bill is drawn and indorsed for the accommodation of the drawee.</p> <p>In a suit for contribution against the accommodation drawer by the accommodation indorser of a bill, who has had to pay it, extrinsic evidence is admissible to show that the parties stand in the relation of co-sureties.</p>

<p>A. died tlie owner of a building, part of which was used for a dry-goods store, and the residue for a dwelling. The widow continued in the dwelling, and the heirs leased.the store-room to B. The whole building haying afterward been set off to the widow for her dower, she brought suit against B. for the rent which had accrued for the use of the store-room before her dower was assigned. Held, that the suit would not lie.</p>

<p>Suit by the assignee against the latter of two assignors of a note. Answer, under oath, that the defendant was only the agent of the prior assignor, &c., but was required by the plaintiff to place his name upon the back of the note, which he did “in blank,” though he was not to be liable; and, therefore, ho denied the assignment. The paragraph having been demurred to, the demurrer was sustained as to the special facts, but overruled as to the mere denial of the assignment.</p> <p>Held, that the paragraph was indivisible.</p> <p>Held, also, that it was insufficient.</p> <p>The defendant further answered, that the plaintiff paid to A. for said note the sum of 360 dollars, and no more. Verification. The note called for 400 dollars, besides interest. Held, that the paragraph, even if valid as a bar to part of the note, was no bar to the suit; but, held, that it was not valid as to any part of the note.</p> <p>A party sued as assignee of a note, by not denying the assignment under oath, admits it.</p> <p>Illegal proof of what need not have been proved at all, will not vitiate a verdict.</p> <p>The Court below, after the argument of a cause had commenced, allowed the plaintiff to give an item of evidence. Held, that the matter was within the discretion of the Court.</p> <p>Suit by the assignee against the assignor of a note, made payable without relief from valuation laws. Judgment, payable without relief, &c. Held, that the judgment was right.</p>

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

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

<p>By the act to authorize and limit allowances by Courts and boards, &c., 1 R. S. 1852, p. 101, it is discretionary with the county commissioners to make allowances for voluntary services rendered to the county; and it is provided, also, that where such allowances are made, there shall be no appeal from their decision.</p> <p>It will be presumed, where the contrary is not shown, that the board "of commissioners, in the exercise of a discretionary power, did right.</p>

<p>A receipt for money has no effect, nor is it binding upon any person, until it is delivered, to the person in whose favor it is executed, or is received or otherwise recognized by him.</p> <p>A. was the executor of B., and guardian of C., a minor. The estate of B. was indebted to the estate of D., and of the sum due, C. was entitled to half, as a legatee of D. E., D.’s executor, agreed with A. that half the debt might be retained by the latter, as guardian of G., provided he paid the other half to E., as such executor. Held, that A. could not credit himself as executor, and charge himself as guardian, with the half of said debt coming to his ward, until he had paid the other half of the debt to E.</p>

<p>Petition, under art. 14, c. 30, E. S. 1843, by the plaintiff, as being entitled to a distributive share of the personal estate of an intestate, against the administrator, to be allowed to receive such share. The right of the plaintiff to the portion claimed, turned upon the construction of a statute, and the persons interested in a construction adverse to the plaintiff’s were not made defendants. Hdd, that they were not necessary parties.</p> <p>A person died intestate in April, 1850, leaving surviving him no widow, nor children nor their descendants, nor father, nor mother, but leaving brothers and sisters who were only of the half blood. Held, that the brothers and sisters of the half blood were, by the E. S. 1843, entitled, upon distribution, to the intestate’s personal estate.</p> <p>Where a man has sold real estate and dies intestate, the unpaid purchase-money, in whatever way secured, becomes assets in the hands of the administrator, and without reference to the source whence the land was derived, the transmission of such purchase-money is governed by the rules relating to the distribution of the personal property of intestates.</p>

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

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

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

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

<p>A demurrer to a complaint for any other causes than the six specified by the code, should be overruled.</p> <p>The facts in this case were similar to those in Tate v. The Ohio and Mississippi Railroad Company, ante, p. 479, and the judgment, for the reasons there given, was affirmed.</p>

<p>Action by A. against B., to recover a sum of money deposited by A. with B., which B. refused to deliver on demand. B. alleged, by way of counter-claim, that A. had falsely charged him with stealing the money deposited, whereby he had sustained damages, &c. Held, that a demurrer to this paragraph was correctly sustained.</p> <p>A coimter-claim, in actions ex contractu, is that which might have arisen out of, or could have had some connection with the original transaction, in view of the parties, and which, at the time the contract was made, they could have intended might, in some event, give one party a claim against the other for compliance or non-compliance with its provisions.</p>

<p>In an action against a railroad company, a service of process on the president is, hy the B. S. 1852, sufficient.</p> <p>A judgment was set aside at the term at which it was rendered, on the defendants’ motion, on the ground that they had received no actual notice of the suit, &c.; and the case was left standing on the complaint. Before any further proceedings were had, the plaintiff prosecuted an appeal to the Supreme Court. Held, that, under the B. S. 1852, the appeal would not lie.</p>

<p>A justice of the peace has no authority, by the B. S. 1852, to appoint a constable, except to serve process in a particular cause.</p> <p>A justice of the peace who has appointed a special constable, but has omitted to make an entry thereof in his docket, may make the entry, at any time, without being ruled so to do.</p> <p>A religious society may prescribe such rules as they may think proper for preserving order, when met for public worship; and they may use the necessary force to remove.a person who is disturbing the society by a wilful violation of anile.</p>

<p>It is not the practice in the Supreme Court to reverse a judgment otherwise correct, for an error in sustaining a demurrer to a plea, or paragraph in an answer, if there is another issue upon the record under which the same evidence would be admissible.</p> <p>Evidence relevant to an issue raised by the answer, and tending to disprove the allegations in the complaint, was excluded by the Court. Held, that this was error.</p> <p>The execution of a deed which conveys nothing, is not a sufficient consideration to support a promise by the grantee to the grantor.</p>

<p>The refusal of an instruction will not be noticed, where the record does not contain the evidence.</p> <p>By the R. S. 1843, if an action commenced in the Circuit Court appeared to have been brought on a demand of 50 dollars or less, the defendant was entitled to costs; but if the plaintiff, by his evidence, showed a prima facie case for more than 50 dollars, though the defendant, by his evidence, reduced the recovery below that sum, the plaintiff was entitled to costs; but the right to costs being determined by the evidence, unless the evidence is embodied in the record, the Supreme Court will regard the decision of the Circuit Court as correct, whichever way the question may have been decided.</p>

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

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

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

<p>Action against three defendants. Suggestion of not found as to one. The others appeared and pleaded. Judgment, that the plaintiff recover against the defendants, &c. Held, that the judgment was only against the defendants who had appeared and pleaded.</p> <p>Where the jury have been properly instructed, the Supreme Court are reluctant to disturb the verdict, except where it is clear that there was no evidence to support it.</p>

<p>The owner of land filed in the office of the clerk of the Court of Common Pleas, in vacation, his application, addressed to the judge of said Court, for the appointment of appraisers to assess the damages which he had sustained by the construction of a railroad through his land. The railroad company were not notified of the pendency of the proceedings, until the damages had been assessed. The Court, at the next term, ordered that the petitioner should have execution against the company for the damages assessed, &c., and also for costs.</p> <p>Held, that the proceedings were properly instituted, under the R. S. 1852.</p> <p>But, held, that the order for execution, &c., both as to damages and costs, was erroneous.</p>

<p>It is a sufficient ground for a new trial that judgment was rendered for a greater sum than was claimed in the complaint.</p>

<p>A. and B., having been partners, dissolved the partnership, and B. received, and undertook to collect and account for the partnership claims. B. died, and the uncollected claims came into the hands of his administrator. Complaint by A. against the administrator, for having carelessly lost the claims, to the plaintiff’s damage, &c. Held, on demurrer, that the suit would lie.</p> <p>Where a former recovery is pleaded to an entire complaint, if a part of the demand was not included within the former recovery, the fact should be set up by reply.</p> <p>One good plea, or paragraph of an answer, going to the entire cause of action, bars the action.</p>

<p>A subscription of stock to a turnpike company, made by an agent, in the name of the principal, -without proper authority, will bind the latter, if he subsequently ratifies it.</p> <p>Parol evidence is not admissible, except in a case of fraud, to show that a subscription of stock, absolute on its face, was made subject to conditions.</p> <p>Suit upon a subscription to a turnpike company, to recover instalments. It was objected that notice of the meeting for the election of directors was not proved, but it appeared that the defendants were present by their proxy and voted at the election. Held, that the objection was unimportant.</p> <p>A subscription of stock, to the amount of 1,200 dollars, was made by three persons jointly to a turnpike company. They afterwards, without the assent of the company, procured their names to be put down as separate subscribers of 400 dollars each, upon the copy of the articles which was recorded in the recorder’s office. In a suit against them jointly for instalments due upon the subscription of 1,200 dollars, a copy of the articles as recorded in the recorder’s office, was produced in evidence, but the facts above stated were shown by parol evidence. Held, that the defendants were jointly liable.</p>

<p>A new trial will not be granted on account of the refusal of instructions, where the record does not contain the evidence, nor show that there was any evidence to which they would have been applicable.</p> <p>The Coxu-t below refused to admit an item of evidence on the trial, but the record did not show that if admitted it could have had any influence on the case. Held, that no error was shown.</p> <p>In a criminal prosecution for forcible entry and detainer, the Court admitted evidence that the defendant, in forcibly entering, &e„ assaulted and beat the party in possession.</p> <p>Held, that the evidence was correctly admitted.</p> <p>Held, also, that the assault and battery was part of the offence charged, and that the punishment therefor necessarily included that for the assault and battery.</p> <p>If a person having a possessory title to land, enters by force, and turns out a person who has a naked possession only, he may be indicted for a breach of the peace, bxxt is not liable in trespass to the ousted person; and on the trial upon the indictment, the title to land does not come in question.</p>

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

<p>After the dissolution of a partnership, one partner can not bind his co-partner by a promissory note in the name of the firm.</p> <p>To make a voidable contract of an infant binding- upon him, he must expressly ratify it after he attains to full age; and a ratification will not be inferred from a mere acknowledgment of the debt.</p> <p>A promise to pay, or a direct confirmation, after the infant has attained to full age, is evidence of such ratification.</p>

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

<p>APPEAL to the Putnam Court of Common Pleas.</p>

<p>A. rented land to B., with a stipulation that B. should pay to A. a third of the wheat to be raised, “in the half bushel.” Held, that until the wheat was delivered to A., it was not subject to be levied upon by an execution against A.</p>

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

<p>If A. execute a bond to B., conditioned for the conveyance of land on a day spcciliod, but do not tender the conveyance until after the day has expired, or show some legal excuse for the omission, he can not afterward maintain an action at law upon a note given for the purchase-money, though before suit he had tendered the conveyance.</p> <p>Under the former practice, a claim could not be pleaded as a set-off, unless the defendant could have maintained a suit upon it at law.</p>

<p>Complaint for slander. The words were not actionable in themselves, but extrinsic facts were averred which showed them to be so. Verdict and judgment for the plaintiff. The evidence was not set out in the record. Held, that it must bo presumed that the extrinsic facts were proved which rendered the words actionable.</p>

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

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

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

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

<p>Suit in chancery, governed in the Court below by the practice under the R. S, 1843, and in relation to the appeal, in the Supreme Court, by the R. S. 1852. Held, that the defendants, in order to avail themselves of the objection that the bill was defective for the want of proper parties, should have pursued the steps indicated by ss. 39,40 and 41, of art. 2, c. 46, R. S. 1843, and should have made a specific assignment of errors in the Supreme Court.</p>

<p>A general assignment of errors is bad.</p> <p>It was assigned for error in a cause, (that the Court erred in refusing to grant a new trial; but the evidence was not in the record, nor was a special case made, under s. 347, 2 R. S., p. 116. Held, that so far as related to the evidence, no notice could be taken of the assignment.</p> <p>An assignment of errors was as follows: The Court erred in instructing the jury, and also in refusing- to instruct them. Held, that the assignment was not a special one.</p> <p>Where the record does not contain the evidence, the instructions of the Court, if pertinent to the issue, and not clearly erroneous under any state of facts, will be presumed to have been applicable to the case made.</p> <p>A refusal of instructions will not be held erroneous, though pertinent to the issue, if the evidence is not embodied in the record showing that they were applicable to the case made by the evidence.</p>

<p>The illegal discharge of a prisoner arrested upon a ca. sa., amounts but to an escape.</p> <p>It is not necessary, under s. 512, p. 151, 2 R. S. 1852, in order to retake the prisoner who has escaped from custody, that the same proceedings should be»had as were requisite for his first arrest.</p> <p>'The doctrine that a levy is prima facie a satisfaction of an execution, does not apply to a case where a debtor is arrested upon execution, and the sheriff is compelled to accept such property as he tenders, not as a sufficiency to satisfy the debt, but with a view to his discharge upon an oath of insolvency.</p>

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

<p>Where the payee of a note transferred it by mere delivery to a third person, a suit at law could only be brought, under the R, S. 1843, in the name of the payee against the maker, and the specification that it was for the use of the usee, was merely directory to the officer who might collect the money, to whom he should pay it, and from whom, in certain contingencies, he should collect the costs.</p> <p>In such suit, the usee had not the rights of an assignee against the maker, but the defendant might plead any matter of defence growing out of the transaction between him and the payee.</p>

<p>Errors relied upon for the reversal of a judgment, must, under the R. S. 1852, be assigned specifically.</p> <p>Errors, by the R. S. 1852, are to be assigned of matters of law only.</p> <p>A bill of exceptions, purporting to set out the evidence, closed as follows: “ Which was all the evidence or proof given on the trial in support of the plaintiff’s complaint or claim; and it is admitted of record that no fact in issue was admitted by the defendant.” Held, that it did not appear that all the evidence was embodied in the record, in compliance with rule 30 of the Supreme Court.</p>

<p>A witness having- been ashed, by the party who called him, whether a certain fact existed, and whether he had not told A. so, answered that ho did not remember; whereupon the same party produced A., who testified that the witness had so told him, &c. Ildd, that A.’s evidence was inadmissible.</p> <p>In a suit for criminal conversation, neither the confessions of the wife, nor the opinions of witnesses concerning her fondness for the defendant, are admissible in evidence against him.</p> <p>The rule that objections to evidence must have been distinctly specified when the evidence was offered, was held not to apply in a case where the evidence itself plainly showed the point of objection.</p>

<p>Information against A. for money won of B. at a game of cards. On the trial, B. testified that on or about the day stated in the information, he played cards with A., who won from him two five dollar gold pieces, at, &c. Held, that the testimony obviously meant that the money was paid over to A.</p>

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

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

<p>The force and effect of a written instrument are to be determined by the Court.</p> <p>A mere release, if upon a consideration, may be valid without a seal.</p> <p>But a release intended to operate as a grant of an easement in land, must be executed under seal.</p> <p>Action against the Junction Railroad Company for damages occasioned by the construction of the road through the plaintiff’s land. Held, that the plaintiff’s remedy was by claim for damages, &c., to be enforced in tho mode prescribed by the defendant’s charter.</p>

<p>Where an instrument under seal specifies a consideration upon which it is founded, the obligor is estopped from saying that it was without consideration.</p> <p>The unconditional delivery of a bond to a third person, for the use of the obligee, and the subsequent acceptance of it implied by bringing a suit, show sufficiently a delivery to the obligee.</p> <p>An acceptance of a deed by the obligee, may be presumed from the beneficial nature of the transaction.</p> <p>Where a contract has been made by one competent to contract on behalf of an infant, and a full consideration has actually been paid, the infant may sue in equity for a specific performance.</p>

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

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

<p>An appeal will lie, under the B. S. 1852, from an order or judgment upon a writ of habeas corpus, whether made in term or vacation, and without the filing of a bond.</p> <p>An officer who has made an arrest by virtue of process, is a proper party to a writ of habeas corpus, for the purpose of testing the legality of the commitment.</p> <p>The governor of this state, upon the requisition of the governor of Kentucky, issued, his writ for the arrest of A., as a fugitive from justice. The writ stated that a requisition had been made, &c., which set forth that A. had been indicted, &c., a certified copy of which indictment accompanied the requisition; and the writ required A. to be delivered to B. as an agent to receive A. and convey her to Kentucky. B. made return that he held A. in custody by virtue of the writ, &c., but did not accompany the return with a copy of the indictment.</p> <p>Held, that this was not necessary.</p> <p>Held, also, that the writ was prima facie evidence that an indictment was pending against A. as alleged therein.</p> <p>Held, also, that the writ sufficiently showed B.’s authority to make the arrest, without producing any authority from the governor of Kentucky.</p>

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

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

<p>A Court of equity, as a general rale, has no jurisdiction to subject choses in action to the payment of debts. When the title to personal property which really belongs to an execution defendant, is clouded, or vested in another person, so that the lien of the execution will not attach, equity will come to the aid of the execution and perfect the title; but as equity, in these cases, acts only in aid of the law, it will interfere only as to such property as, if the title thereof were actually in the execution-defendant, would be liable to sale on an execution at law; unless, indeed, some special ground of equity jurisdiction be shown, as fraud, trust, &c.</p>

<p>Prosecution for an assault and battery, before a justice of the peace -of Elk-hart county. The defendant having been convicted and fined, took an appeal to the Elkhart Common Pleas. The venue was then changed, upon his application, to the La Grange Common Pleas, where he was convicted, &c.</p> <p>Held, tíiat in tlie Court of Common Pleas no information was necessary, nor any other affidavit than the one filed before the justice.</p> <p>Held, also, that the La Grange Common Pleas had jurisdiction of the cause.</p> <p>Bebutting testimony, by the usual course of practice, being the last which is offered, the Supreme Court would hesitate to reverse a judgment because the Court before which the cause was tried refused, after the rebutting testimony was closed, to admit further evidence.</p>

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

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

<p>A petition for a highway lying in a single township, was pending before the board of commissioners when the K. S. 1852 took effect. Held, that the jurisdiction was continued by the statute saving pending suits.</p>

<p>It is not necessary, in order to maintain an action against the surety on a guardian’s bond, that a judgment should first have been obtained against the guardian.</p>

<p>This case involved the same questions decided in Maize v. The State, 4 Ind. B. 342, and the decision was affirmed for the reasons given in that case.</p>

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

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

<p>Ferries, being established by the county commissioners, and not by direct public enactment of the legislature, their existence, in any particular' instance, is a fact to be proved, and can not be judicially noticed by the Court. Prosecution against A. for hiring a boat, to be used in ferrying persons over a certain stream, &e. Neither the affidavit nor information alleged that any public ferries were established on said stream. Held, that the affidavit and information were bad.</p> <p>An information can only be amended in matter of substance, when there is an affidavit on file which is substantially sufficient.</p>

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

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

<p>Suit against the maker and indorsers of a note, payable at a chartered bank in this state. A copy of the note was filed with the complaint, but though the note had been duly protested, neither the protest nor a copy of it was filed with the complaint. Hold, that a demurrer, for that objection, was correctly overruled. •</p> <p>The defendant filed with his answer certain interrogatories, to be answered by the plaintiff. On the calling of the cause for trial, the interrogatories not having been answered, he filed his affidavit, alleging that the answers to the interrogatories were material to his defence; that he knew of no witnesses by whom the facts sought to be established could be proved; that he had reason to believe that the plaintiff knew the facts to which the interrogatories referred; and that he could not safely proceed to trial until the interrogatories were answered. Upon this affidavit, he moved for a continuance of tho eáuse, until the interrogatories should have been answered.</p> <p>Held, that the affidavit showed no sufficient ground for the continuance.</p> <p>Hdd, also, that the defendant should have moved for a rule upon the plaintiff to answer the interrogatories, &c.'</p>

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

<p>The affidavit, in a prosecution for a misdemeanor, must allege the same offence and person subsequently charged in the information, but the information need not follow the affidavit in the manner in which it sets forth the particular facts which constitute the offence.</p> <p>An information must contain all the substantial requisites of an indictment at common law.</p> <p>Information against A. for gaining. The information alleged that B. owned and kept a ten pin alley for hire, and that A. and 0., then, &c., hired of B. the use thereof to play one game, &c., for which they agreed to pay B. 10 cents; and that, in pursuance, &e., A. and C. then and there played said game, &c., by which A. won of O. 5 cents, the half of the hire of the alloy, by then, &c., unlawfully betting and wagering with him said 5 cents on the result of the game, contrary, &c. The evidence showed the hiring of the alley, &c., and the playing of the game, and that A. won of C. the value of 5 cents, being A.’s liability to B. for the nse of the alley, which liability C., then, &c., paid to B.</p> <p>Held, that there was no material variance between the information and evidence.</p> <p>Held, also, that the information was sufficient.</p>

<p>The right of action of a wife, under the liquor act of 1853, for an injury consequent upon the retailing of spirituous liquor to her husband, is limited to a suit on the bond of the retailer.</p>

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

<p>When a bill contains a prayer for general as well as special relief, the Court may mould the decree to meet the case made in the record.</p> <p>To a bill in equity which specially charged fraud, there was a plea in bar not accompanied by any answer.</p> <p>Held, that, under the E. S. 1843, the plea was bad.</p> <p>An answer in chancery manifestly evasive, may be treated as no answer, and ordered to be taken from the files.</p>

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

<p>A. and B. haying been jointly indicted, A. appeared without process, and entered into a recognizance, and the cause was continued. Witnesses were subpoenaed for the first day of the next term, at which time A. appeared, and B. also, without any service of process, and they informed the Court they would be ready for trial on the next day. On the fifth day they appeared and elected to be tried separately, A. first. On the eighth day A. was acquitted; and on the ninth B. was tried and convicted. Held, that B. ought to have been taxed with the fees of the witnesses from the first day of the term.</p>

<p>A justice of the peace is not required by the R. S. 1852 to make up his docket in criminal cases in the same manner as in civil cases.</p>

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

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

<p>Action in the Common Pleas upon a note given for the price of dry goods. It was agreed, when the note was made, that all errors in listing, &c., might be corrected, and deducted from the amount of the note. The judgment was reduced below 50 dollars by proof of payments and that, by a mistake in estimating the amount of the goods, the note was given for too much.</p> <p>Held, that the latter defence (which was pleaded) was a counterclaim.</p> <p>Held, also, that the defendant was entitled to a judgment for costs.</p>

<p>Proceeding by A. and others, suing as infants, against a turnpike company, for constructing their road through the plaintiffs’ land. Plea, denying the plaintiffs’ infancy, the ownership of the land, &c., and all other matters alleged, &c. Held, that the character in which the plaintiffs sued was admitted.</p>

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

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

<p>It is the duty of the Courts, under the constitution, to determine, whenever the question arises, whether the subject of a statutory provision is properly included in the title of 'the act of which it is part.</p> <p>It is necessary, under s. 19 of art. 4 of the constitution, that every statute shall have a title; that the title shall designate a single subject for the act; and that such subject shall he reasonably particular and not too general.</p> <p>As a general rule, tlie title of an act should not express the end, object or purpose to be accomplished, but rather the means by which such end, &e., is to be accomplished.</p> <p>-*-n ^16 ^option of s. 19 of art. 4 of the constitution, two purposes were had in view: 1. To have the title indicate the subject-matter of the act, and 2. To promote the codification of the statutes.</p> <p>Under the constitution the criminal and civil codes should be distinguished by distinct titles.</p> <p>The suit to recover a penalty provided for by section 25 of c. 102,1 R. S. 1852, is a civil suit and is no bar to a criminal prosecution.</p> <p>Section 25 of c. 102, 1 R. S. 1852, is not void as not being properly included within the title of the act of which it is part.</p>

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

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

<p>In a suit in chancery, the Court may take the opinion of a jury as to any of the facts in controversy.</p> <p>The R. S. 1843 did not alter this rule of practice.</p> <p>Suit by part of the heirs of A. against the heir at law and legatee of A.’s administrator, for an account of the administration, &c., charging that the administrator had failed to account for the assets received, &c., and had not made final settlement, &c., and that the assets exceeded the amount of the debts, &c. .á.’s widow was offered as a witness to prove maladministration, and B., who was a creditor of the estate, was also offered as a witness to prove that the administrator had failed to account for assets received, &c. Decree for the plaintiffs for the whole amount of the devastavit found.</p> <p>Held, that A.’s widow, even if, as such, or as heir at law of a deceased child of A.’s, she was entitled to a share of the estate in distribution, the suit not being for her benefit, was a competent witness.</p> <p>Held, also, that B. was incompetent.</p> <p>Held, also, that the decree for the whole amount of the devastavit, was erroneous.</p> <p>A witness is not competent to create a fund by his testimony for his own benefit, nor to increase one out of which he is entitled to a distributive share; but where the fund is ample, as in the case of a solvent estate, a creditor is a competent witness.</p> <p>If a witness, incompetent under the former practice, was erroneously admitted to testify, the error is not cured by the fact that the witness, on a future trial, would be competent.</p>

<p>The Jeffersonville Association, a corporation, being indebted to A., as the assignee of certain claims against them, and having a decree of foreclosure against certain real estate, passed an order that, to carry out the intention of the company to make a final settlement of their affairs, said real estate, &c., should be placed in the hands of A. and B., for the purpose of settling, first, the amount due to A., and then the other liabilities of the association, subsequently accounting to the board for the balance. A. bid off the land in the name of himself and B., at the sale upon foreclosure, but the sheriff, by the direction of the association, conveyed the land to B. only. At the time the land was bid off, A. also held a decree of foreclosure upon a mortgage of other land, by assignment, and the covenant of the association for the removal of the incumbrance thereof.</p> <p>Held, that the order of the board did not confer upon A. a power coupled with an interest in the land bid off by him.</p> <p>Held, also, that A. had no authority to hid off the land in the name of himself and B., and that the purchase could not bind the company unless afterward confirmed by them.</p> <p>A power coupled with an interest is created by an instrument which vests the title to the subject of the agency in the agent, in such a manner that he may execute the power in his own name.</p> <p>In the case of a naked power, the death of the principal puts an end to it, but if by virtue of the power the title to the thing has passed to the agent, it is irrevocable either by the death or act of the principal.</p> <p>By the B. S. 1852, where upon the statements in the pleadings one party is entitled by law to judgment in his favor, judgment must be so rendered by the Court, though a verdict has been found against such party.</p> <p>It is not the name given to an agent, but the acts he is authorized to do, which determine the extent of his authority.</p> <p>Whether a person who has acted as a director of a corporation was legally such, can not he inquired into collaterally.</p>

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

<p>A motion in arrest of judgment is an affirmance of the verdict.</p> <p>It is no answer to a suit for obstructing a highway, that the defendant opened another way through which travel could pass.</p>

<p>In chancery, such matters only, in the progress of a cause, as do not necessarily become part of the record (such as oral evidence of exhibits at the hearing, &c.,) need be presented, on appeal, by bill of exceptions.</p> <p>In chancery cases, the Supreme Court will weigh the evidence, and decide thereon without respect to the decision of the Court below.</p> <p>The administrators of an estate, without any order of Court, voluntarily paid a part of the assets to the widow and heirs, before the settlement of the estate. Sufficient means not being left to pay the debts and compensate the administrators for their services, they brought their action against the widow and heirs to recover a sufficient sum out of the amount advanced to them to discharge the unpaid residue of the debts and compensate the administrators for their services. Held, that the suit would not lie.</p>

<p>The charter of a railroad company contained a provision that where any person through whose land the road might run should refuse to relinquish the same, or when a contract between the parties could not be made, the corporation might give notice to a justice of the peace, &c., of the facts, and the justice should summon the owner, &c., and appoint twelve disinterested men, &c., who, after having taken an oath, &c., should view the land, &c., and after having taken into consideration the advantages as well as disadvantages the road might be to the same, should report whether the person was entitled to damages or not, &c.</p> <p>Held, that this provision was contrary to common right, and should be strictly construed.</p> <p>Held, also, that it was inapplicable except where the company had taken the initiative in assessing the damages.</p> <p>Held, also, that it was only applicable where the land appropriated was part of a tract with which the road came in contact.</p> <p>Held, also, that if, when the assessment was made, the road was not in contact with the land taken, the circumstance that it had been, as originally laid out, was of no importance.</p> <p>Where the instructions of the Court, under every supposable state of facts, are erroneous, the judgment will be reversed.</p> <p>At law, under the former system of pleading, a demurrer was waived by pleading over.</p>

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

<p>A lease which did not ascertain the premises demised, held to he void.</p>

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

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