Volume 8 — Blackford's Indiana Reports

<p>“ After the return1 of elongata to a writ of replevin, the plaintiff may have a writ of capias in withernam*</p>

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

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

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

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

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

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

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

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

<p>In a suit, under the statute, against the maker and indorser of a promissory note, and process served on both, the plaintiff cannot enter a nol. pros, as to one (who has not pleaded a matter going to his personal discharge), and proceed to judgment against the other.</p>

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

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

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

<p>Vide syllabus in the case of Conard et al. v. Dowling, ante, vol. 7, p. 481.</p> <p>Assumpsit on a promissory note. Plea, that the note was given for a certain newspaper and printing establishment, which the plaintiff, at the time the note was given, sold to the defendant for five dollars in hand and for two thousand dollars, for which last-named sum the said note and others were given; that the plaintiff had not, at the date of the note, nor has he now, any title to said property; wherefore the consideration of the note has wholly failed. Held, that the plea was bad.</p> <p>If the defendant tender an immaterial issue, and it be found against him, he has no right to a repleader.</p>

<p>In a suit on the indorsement of a promissory note, a plea that the indorsement was made without any consideration whatever, is in substance valid.</p> <p>The payee of a promissory note, which was executed and made payable in New York, having indorsed it in Indiana, was sued here on his indorsement. Held, that the indorsement must be governed by the law of New York ; and that if the diligence necessary by the law of that state to fix the indorser had been used, the defendant was liable.</p> <p>Held, also, that an instrument of writing, purporting to be a protest of said note with a certificate of notice to the indorser by a notary public in New York, was admissible evidence in said suit for the plaintiff, under the statute, without proof of its execution.</p> <p>If in a suit tried on the general issue since the R. S. 1843, a verdict and judgment have been rendered for the plaintiff, the judgment will not be reversed merely because a demurrer to a special plea was erroneously sustained, if the matter specially pleaded was admissible evidence under the general issue.</p>

<p>Where a person designedly or knowingly causes a false impression to be entertained by another, who is thereby drawn into a contract injurious to his own rights or interest, it is a case of fraud in which equity will relieve.</p> <p>Parol evidence of the understanding of the parties to a mortgage, at the time of its execution, that it should not prejudice the priority of lien of a subsequent mortgage then about to be taken, is admissible to show the extent of the notice which the first mortgagee had of the pending negotiation as to the.second mortgage.</p> <p>If a defendant in chancery do not profess to answer from any knowledge he has of the matter in controversy, evidence equivalent to that of two witnesses is not necessary to overcome his denial.</p> <p>Agents are generally competent witnesses : they aro so in many cases ex necessitate, though they may be interested.</p> <p>The party objecting to the admission of a witness must show his incompetency.</p> <p>Objections to the admission of a witness are not to be favoured, when made after it is too late to restore his competency by a release.</p> <p>An objection of lapse of time to showing fraud in a mortgage should be made in the Court below.</p>

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

<p>If one of the holders of a joint promissory note and one of the makers submit to arbitration the question whether the note is valid as to such maker, and the award be that it is not, the award will not bar a suit by all the holders against all the makers of the note.</p>

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

<p>It is too late after an appearance to a motion to object that the notice of the motion is defective.</p> <p>The sale of real and personal property upon execution on a judgment on contract, must be governed by the law in force when the contract was made.</p>

<p>A scire facias by an administrator to have execution against replevin-bail entered on a judgment in favour of the intestate, need not allege that the judgment had been revived.</p>

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

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

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

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

<p>The Madison Insurance Company may take interest in advance on the loan of money.</p> <p>But where that company took interest in advance for six months on a note dated the 7th of February, 1841, and payable one hundred and eighty days after date, it was held to be usury.</p> <p>Although usurious interest be received on the loan of money, the principal sum after deducting the interest may, under the statute of 1843, be recovered from the borrower, but the defendant will recover costs.</p>

<p>It is no objection to a foreign attachment against A., that the debt on which the writ is founded is evidenced by the joint and several note of A. and B.</p> <p>The plaintiff in such attachment must prove, that the person who assisted the sheriff in making the inventory and appraisement of the property attached, was a householder of the county.</p>

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

<p>The declaration in debt on a constable’s bond, in assigning a breach, alleged that the constable “ did not make legal service and return ” of an execution placed in his hands, &e. Held, that the allegation was insufficient.</p>

<p>A bill of exchange drawn by a person resident in this state, payable in New Orleans, and directed to himself in that city, was protested for non-payment. Held, that the drawer was liable to five per cent, damages on the bill.</p>

<p>In slander, evidence that the defendant, after having spoken the words laid, had repeated them at various times, is inadmissible in aggravation of damages.</p>

<p>W. having separate judgments against T. and L. on their joint and several promissory note, issued a fi. fa. on the judgment against T. which was levied on certain real estate. Whilst the execution was in the sheriff’s hands, C. entered into a recognizance as bail in the case on the order-book of the Circuit Court. Held, that W. had his election to collect his money by an execution on the recognizance if valid, or by an execution on the judgment against L. Held, also, that if the recognizance was objectionable, C.’s remedy was by motion, on the law side of the Circuit Court, to set it aside.</p>

<p>In a suit on the covenant of seisin or of right to convey in a conveyance of real estate, the breach may be assigned by negativing the words of the covenant.</p>

<p>Sci. fa. from the Circuit Court on a recognizance taken by a justice of the peace for the appearance, before him, of a person charged with having passed counterfeit money. The justice had declared the recognizance forfeited, and had certified the same to the Circuit Court. Held, that by a surrender of the principal in the Circuit Court at any time before judgment on the sci. fa., the bail might be discharged on payment of costs.</p>

<p>If a suit in a justice’s Court, in which the defendant is entitled to the general issue, be certified to the Probate Court, the trial in the latter Court should be by jury though the defendant fail to appear there.</p>

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

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

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

<p>Although a suit be commenced in a justice’s Court, the defendant cannot have ■ the benefit of the plea of non est factum unless it be pleaded and sworn to.</p> <p>A trial without an issue is erroneous.</p> <p>Evidence tending to show the failure of consideration of a bond sued on, is inadmissible under the plea of non est factum.</p>

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

<p>A statement in a scire facias, nnder a videlicet, of an impossible day is surplusage. i</p> <p>If to a scire facias on a justice’s transcript for execution against real estate, the defendant appear and suffer judgment by nil dicit, the averment that the defendant had real estate subject to execution need not be proved.</p>

<p>An ambiguity arising from the phraseology of written evidence — not from extrinsic matter — cannot be explained by parol evidence.</p> <p>A power given by a seller of certain sacks of wool to a third person to weigh the same and deliver them to the buyer, does not authorize the agent to make any warranty, on the part of the seller, as to the quality of the wool.</p> <p>And such agent’s report to the seller of his having attended to the weighing and delivery of the wool is no proof of the seller’s ratification of a warranty of which he was uninformed.</p> <p>The construction of a written document is for the Court and not for the jury.</p> <p>If wool sold in sacks be marked on the sacks and described in the invoice, by the authority of the seller, as being of a certain quality, there is a warranty by the seller that the wool is of that quality.</p> <p>Special pica to three of the four counts in a declaration, and a replication to the plea. General issue to the whole. Held, that the action was not discontinued.</p>

<p>A capias ad respondendum with an indorsement that no bail is required, is substantially a summons.</p> <p>Three counts in debt. Two of them on writings obligatory; the third “ for interest for the forbearance of divers other large sums of money before that time and then due and owing from the defendant to the plaintiff', and by the plaintiff forborne to the defendant for divers long spaces of time before then elapsed, at defendant’s request, whereby,” &e. Judgment against the defendant by default. Held, that the amount due should be determined by a jury.</p>

<p>Words amounting to a charge that the plaintiff had committed a penitentiary offence, but that he was insane when he committed it, are not actionable.</p> <p>The defendant may demur to a part of the words laid in a count in slander.</p> <p>Parol evidence is inadmissible to prove what the verdict in a previous suit was, and that there was no new trial in such suit.</p> <p>In slander, until some of the actionable words laid have been proved, evidence of the quo animo of the defendant is inadmissible.</p> <p>If in such action, the defendant give evidence tending to show that the Words were not spoken maliciously, the question of malice is for the jury.</p> <p>If a charge given to the jury would be correct if certain evidence were given, the Supreme Court will presume that such evidence was given, the record not showing the contrary.'</p> <p>The refusal to give an instruction to the jury is not error, if the same instruction, in substance, had been previously given.</p> <p>The party complaining of a refusal to give an instruction to the jury must show, ■ by the record, that there was evidence given to which the instruction was applicable.</p> <p>The following instruction in slander, asked for by the plaintiff, was refused : “ If the defendant gavp circulation to a report maliciously against the plaintiff, it will not justify him even if he gave his author at the time,” &c. Held, that this instruction was rightly refused, as the report might not have been slanderous.</p> <p>The following instruction in such action, asked for by the plaintiff, was also refused: “A person who gives currency to a slanderous report does it at his peril; and if in this case the defendant, by repeating the words, gave currency to the report conveyed by the words in the declaration (not covered by the demurrer), he was bound to justify and prove them true, or else he cannot justify the speaking of them, and malice is inferred in the speaking.” Held, that the repeating or first speaking of slanderous words may be often justified without proving them to be true. Held, also, that malice is not always inferred from ■ the spooking of words, which, unexplained, are actionable. Held, also, that the Supreme Court, not being informed of the circumstances under which the words mentioned in this instruction were spoken, must presume them (the circumstances) to have been such as justified the refusal of the instruction.</p> <p>The defendant may prove in such action, under the general issue, that the words were spoken on a justifiable occasion without malice.</p>

<p>A scire facias against A. and B. was returned served on the former and “ not found” as to the latter. Judgment by default against both defendants. Held, that the mistake in rendering judgment against B. was a clerical one, and might be amended. '</p> <p>The Supreme Court amended said mistake; the parties having agreed that if the Circuit Court could make the amendment, the Supreme Court might malee it.</p>

<p>Án indictment for murder alleged that the defendant, with a certain gun which he in both hands then and there held, &c., feloniously did shoot, &c. Beld, that the omission of the word his before the word “ hands ” was no objection to the indictment.</p> <p>The overruling of a motion made by the defendant in such case, that the Court instruct the prosecuting attorney, who had closed his evidence, to call certain witnesses then present, is not error.</p> <p>A juror’s affidavit in such case as to the view he took of the testimony, is inadmissible to impeach a verdict for the state.</p> <p>On the trial of such case, the substance of the dying declarations of the deceased may be proved.</p>

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

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

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

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

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

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

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

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

<p>ERROR to the Jefferson Circuit Court.</p> <p>The petition in this case was demurred to in the Circuit Court, and the demurrer was sustained.</p>

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

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

<p>A vendor of land sued the vendee in ehaneery for the purchase-money. Held, that the suit might be sustained.</p> <p>It appeared in such suit, that the parties had agreed that the tract of land sold (the number of aeres not being known) should be surveyed by a certain person, and that that person had surveyed it accordingly. Held, that the survey was prima facie evidence for the complainant of the number of acres which the tract contained.</p> <p>Irrelevant matter contained in an answer in ehaneery should be struck out.</p> <p>If money alleged in such answer to have been tendered to the complainant be not brought into Court, the allegation of tender should bq struck out of the answer.</p> <p>A fact alleged in a bill in chancery and not denied in the answer must be taken to be true.</p> <p>If the vendee of land who has contracted to pay the purchase-money at a certain time, and has taken possession of the land, cannot show a readiness to pay the money at the time it became due, he is liable for interest on it from that time.</p> <p>The vendor of land having tendered, conformably to his contract, a deed to the vendee executed and acknowledged according to the law in force at the time of the tender, may file a bill in chancery for the purchase-money. But if before a decree (the deed not having been delivered), the form of acknowledgment be changed by law, the decree for the complainant should be that he deliver the deed duly executed and acknowledged, and that the defendant at the same time pay the purchase-money.</p> <p>The Supreme Court may modify a decree of the Circuit Court.</p>

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

The complaint in this case was for injuring, with violence, certain lock-gates on the White Water Canal contrary to a by-law, &c.

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

<p>In case of a judgment confessed by virtue of a warrant of attorney, the cause of action must be described either in a declaration or in the warrant of attorney. The record must also show that the execution of the warrant of attorney was duly proved.</p>

<p>An action of slander may be brought against a single defendant in any county in which he may be found.</p> <p>The sustaining of a demurrer to a plea to the jurisdiction of the Court cannot be objected to by the defendant, if he afterwards pleaded the general issue.</p> <p>The plaintiff in slander does not, by proving a repetition of the words after the' commencement of the' suit, give the defendant a right to prove them to be’ true, under the general issue, in mitigation of damages.</p> <p>Evidence tending to prove the truth of the words in slander is inadmissible under the general issue.</p> <p>Under the general issue in slander, the evidence is usually closed with the plaintiff’s rebutting testimony; and if the defendant would go further, he must show some special cause.</p> <p>In sucli suit, which was for charging the plaintiff with stealing a horse, the verdict was for 500 dollars. A new trial, moved for on the ground that the damages were excessive, was refused. Held, that there was no error in the refusal.</p>

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

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

<p>Where a plea confesses the action, and does not sufficiently avoid it, the plaintiff may have judgment, if his declaration be good, non obstante veredicto.</p> <p>If land, on which there is a mortgage, be sold with a covenant in the deed against incumbrances, the mortgage will he ho defence to a suit for the purchase-money, if there has been no eviction of the defendant, nor payment by him of any part of the mortgage-debt.</p>

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

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

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

<p>Bill in chancery by the Indiana Mutual Fire Insurance Company against the heirs of C. and a terre-tenant, to subject certain real estate, which C. had insured, and which had descended to his heirs, to the payment of the premium note given to said company by C. The bill showed that at the time of C.’s death, nothing was due on the note. Held, that the bill would not lie.</p>

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

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

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

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

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

<p>To an action at common law on an award, the misconduct of the arbitrators is no defence.</p> <p>An award where no suit is pending, and where there is no agreement to malee ^le submission a rule of Court, can be impeached only in chancery for misconduct of the arbitrators.</p>

<p>On a decree of foreclosure and for a sale of the mortgaged premises, the sale should be made in conformity with the statute in force when the mortgage was executed.</p> <p>A mortgage must be presumed to have been executed in this state, the contrary not appearing.</p>

<p>A bond was executed to the stalo by A. and others in 1836, conditioned that A should faithfully discharge his duties as commissioner of the three per cent. fund of Perry county, &c. Held, that the bond was void as having been taken without authority. Held, also, that the commissioner himself was liable to the county, independently of the bond, for any breach of his duties.</p>

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

<p>^11 ^njunc^on may t>e obtained by a mortgagee to restrain a mortgagor from committing such waste as may render unsafe the mortgage-debt.</p> <p>If an injunction in such case be granted in vacation on a valid bill, and it be shown to the Court at the next term that the injunction had been irregularly granted, the injunction may be dissolved, but the bill should not be dismissed.</p>

<p>A decree in chancery against persons not parties to the suit is void as to them.</p> <p>On the death of a mortgagor, the equity of redemption descends to his heirs.</p> <p>And the surplus of a sale under a decree against the heirs in a suit to foreclose, &c., goes to them.</p> <p>A mortgagor who has conveyed the equity of redemption to a person who has assumed to pay the mortgage-debt, need not be a party to a bill of foreclosure. / ”</p>

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

<p>An entry of bail for the stay of execution, made after the judgment has ceased to be repleviable, cannot stand as a judgment, or be the foundation of an execution.</p>

<p>Tho acts of one of several administrators, in respect to the administration of the effects, are deemed to be the acts of all, and are valid.</p> <p>A., B., and C. were Dds administrators. C., Z)., and Z?. were partners in trade when J). died. A. and B., as two of the administrators, of the one part, and 0., in his individual capacity, of the other, settled the partnership business, and found there was due from O. to D.ys estate a certain sum, for which C. gave his note to A. and B. as administrators. Held, that the note was founded on a sufficient consideration and was valid.</p>

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

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

<p>Where an action has been brought for the disturbance of a certain right, and a verdict obtained by the plaintiff under the general issue, and another action’is brought by him against the defendant for a subsequent disturbance of the same right to which the general issue is pleaded, the former recovery, though strong evidence to sustain the plaintiff’s right in the second suit, is not conclusive against the defendant but may be rebutted by other evidence. Where a mill is injured by obstructing the stream on which it stands, and suit is brought for the injury, that the mill-dam is a public nuisance is no defence to the suit.</p>

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

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

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

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

<p>It is no answer to a plea of the statute of limitations to a writ of error, that, within five years next after one of the plaintiffs had arrived at full age, the writ was prosecuted.</p>

<p>The circumstance that an appeal-bond, in the case of an appeal from the judgment of a justice of the peace, bears date after the bond was filed in the clerk’s office, is no objection to the bond.</p> <p>And the fact that the appeal had' been prayed for need not be recited in the justice’s transcript.</p>

<p>If in debt against A., B., and C. on a joint and several promissory note, the plaintiff fail on the ground that the note is invalid as to C., the judgment will be no bar to a subsequent suit against A. on the note.</p>

<p>Bill in chancery against husband and wife. The husband answered alone and confessed the bill. Held, that a decree against both without other evidence was erroneous.</p> <p>The practice in such suit is for the wife to join with her husband in an answer ; but her admissions in the answer are not evidence against her.</p> <p>If a person mortgage several tracts of land, one of which he had previously conveyed to a third person by a deed duly acknowledged and recorded, such third person need not be a parly to a bill of foreclosure on the mortgage.</p>

<p>The gratuitous giving of time by a creditor to his principal debtor does not discharge the surety, though the latter had verbally notified the creditor to sue the principal who was then solvent, but who afterwards became insolvent. Time given to the principal debtor, by a parol contract, to pay a specialty debt, does not at law discharge the surety.</p>

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

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

<p>Oil a trial in assumpsit on the general issue, the plaintiff cannot recover without proof of his demand.</p> <p>The plaintiff’s bankruptcy is a bar to such action for any demand existing prior to the bankruptcy; and the defence is admissible under the general issue.</p>

<p>In actions of debt, assumpsit, and covenant, commenced in the Circuit Court, if the amount of the plaintiff’s demand, established by the evidence, exceed, independently of matters of set-off, &c., fifty dollars, the plaintiff will recover costs; but if that amount be only fifty dollars or less, the defendant will be entitled to costs.</p> <p>Where the record does not contain the evidence, the Court will presume that it was such as to justify the judgment.</p>

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

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

<p>A mistake in an indictment as to the defendant’s name cannot be taken advantage of after a plea of not guilty.</p> <p>The statute which permits every matter of defence to be proved under the general issue, on the trial of indictments, means matter in bar of the prosecution, not mere matter in abatement.</p>

<p>Letters of administration granted in vacation, within thirty days after the intestate’s death, to any other person than his widow (she not having relinquished in writing her right to administer), should, on her application, be revoked at the next term of the Probate Court, and letters granted to her.</p>

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

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

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

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

<p>An indictment for an assault and battery need not allege that the person beaten was late of the county, or that the offence was to his damage.</p>

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

<p>In the case of a cross-bill by a wife against her husband for a divorce and alimony, the husband offered a witness whose competency was objected to because the husband had conveyed to the witness a tract of land, which, it was alleged, might be reached by the wife if she should obtain alimony, and if the conveyance had been made to defraud her. Held, that the objection was untenable.</p> <p>A wife does not, by obtaining a divorce on account of the misconduct of her husband, become entitled to dower, under the act of 1843, in land aliened by her husband before the passage of the act.</p> <p>On the trial of a suit for a divorce where the charge is adultery,'the complainant may prove the offence, though he had known of its existence more than two years before the suit was instituted j and the defendant may prove the scienter in defence.</p>

<p>In a suit against husband and wife for a debt contracted by the wife whilst sole, the admissions of the latter made during coverture, are not admissible evidence.</p> <p>But if pending such suit the husband die, and the suit proceed against the wife alone, her admissions of the debt made as aforesaid are evidence against her.</p>

<p>To authorize a proceeding under the act of 1838 concerning tenants holding over, it must appear that the plaintiff is the landlord of the defendant, or that he claims under such landlord.</p>

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

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

<p>The governor’s pardon of a person eonvieted of a crime does not discharge the defendant from the costs of prosecution; nor is the' governor authorized to remit the costs in such case.</p>

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

<p>Assumpsit in the Circuit Court on appeal from the judgment of the president of the select council of the town of Lawrenceburgh. A motion in the Circuit Court by the defendants to dismiss the suit, on the ground that said president had no jurisdiction, was overruled. Held, that as the evidence was not shown on which the motion was decided, the decision must be presumed to be correct.</p> <p>The said suit having been commenced against the defendants in their Christian names and surnames, it was held that the statement of demand might be against them in the name of their firm.</p> <p>A witness whose deposition had been taken de bene esse, under the act of 1838, was, at the time of the trial at L., acting as clerk of a steam-boat on the Ohio river; the boat touching at the wharf at L. almost daily on its way up and down the river. Held, that the witness’s absence sufficiently appeared to authorize the admission of the deposition.</p>

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

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

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

<p>If a husband has either expressly or impliedly made his wife his agent, her declarations, in regard to matters within the scope of her authority,’ are admissible evidence against Mm; and whether she is his agent, by express or implied authority, is a question for the jury.</p> <p>If a husband entirely abandon his wife and infant children, leaving them no other means of support than the cultivation of a small farm on which he had resided, the jury may infer from those facts that he had authorized his wife to employ, on his responsibility, one of his sons after he became of age to cultivate the farm for the support of the family.</p> <p>An erroneous instruction to the jury, if the verdict be right, is no cause for reversing a judgment.</p>

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

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

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

<p>If a mechanic’s lien accrue after the employer’s marriage, and the employer die after the accruing of the lien, the right of dower of the employer’s widow will be paramount to the lien.</p> <p>It is essential to the validity of a mechanic’s lien, that the party claiming it has filed in the recorder’s office of the proper county, within sixty days after his debt became due, a notice of his intention to hold the lien.</p> <p>If after such lien has accrued the employer die, a bill to enforce it may be filed against his heirs.</p>

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

<p>Trespass for an assault and battery and false imprisonment. Plea, that the defendant made oath before a justice of the peace that he had been threatened by the plaintiff, &c., and prayed surety of the peace; that the justice thereupon issued his warrant, &c.; that the constable, by virtue of the warrant, arrested the plaintiff, &c. Held, that the plea amounted to the general issue.</p> <p>A demurrer to such plea which does not assign as a cause of demurrer that the plea amounts to the general issue, should be overruled.</p> <p>If in an action of trespass, the facts attempted to be proved do not, in law, amount to a trespass, the Court should, on the defendant’s motion, so inform the jury.</p> <p>Where there is any evidence however slight, tending to prove any fact essential to the maintenance of the suit, the question as to the sufficiency of the evidence to establish that fact is for the jury.</p> <p>But if there is no evidence at all tending to prove such fact, it is the duty of the Court to instruct the jury that the law is with the defendant, and that they should find for him.'</p> <p>If a special plea amounting to the general issue be pleaded with the general issue, the plaintiff should move the Court to strike out the special plea.</p>

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

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

<p>Trover by husband and wife. Held, that the declarations of the wife’s mother who had been the former wife of the defendant, as to the ownership of the property in dispute, which declarations were made while the mother was the guardian of her daughter and had possession of the property, and before her marriage with the defendant, were not evidence for the plaintiffs.</p> <p>Where the record does not show the evidence in the cause, and an instruction given to the jury would, under a certain state of facts, be correct, this Court cannot say that the instruction is erroneous.</p> <p>If goods given at one place be, at the time of the gift, in another place, and be afterwards converted by a stranger before the donee can take possession of them, an action by the donee will lie for the conversion.</p> <p>If in trover there have been a demand and refusal of the goods within six years before the bringing of the suit, and there be no other evidence of conversion than the demand and refusal, the statute of limitations will not bar the action.</p> <p>If husband and wife sue for a battery or slander of the wife, or in trover for a conversion of the wife’s goods before the marriage, the declaration must conclude to the damage of both plaintiffs.</p>

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

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

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

<p>A judgment by default cannot be taken in tlie Probate Court, unless the pro-( cess has been served twenty days before the commencement of the term.</p>

<p>Under the Rev. Stat. of 1843, the place of residence of the complainant, in a case of bastardy, is immaterial.</p>

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

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

<p>Petition for partition of lands alleged in the petition to be owned by the petitioners and the defendants, &c. Before the commissioners’ report was made and confirmed, the petitioners proved, to the satisfaction of the Court, that the parties had, prima facie, a title to the premises as described in the petition. Held, that if proof in the case (the defendants having appeared and no default having been taken) of the title of the parties in" the premises was necessary, it must be considered that such proof was not only given, but that it was given in time.</p>

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

<p>If a husband sell his wife’s land for his own benefit, under an agreement with her to purchase other land for her of equal value with that sold, and he after-wards, conformably to the agreement, make such purchase, and cause the vendor to execute the conveyance to his wife, — the land so conveyed will not be subject, in equity, to the husband’s debts, contracted subsequently to his payment for the land but before the execution of the conveyance.</p>

<p>In a suit on a written promise made to the plaintiff by a wrong name, the declaration should aver that the promise was made to him by the wrong name.</p>

<p>If an issue be formed in equity by a plea to the bill and a replication to the plea, a default cannot be entered against the defendant and the bill be taken as confessed, while the issue is undisposed of.</p> <p>The effect of a replication in such case is to admit the plea to be good, and to confine the inquiry to the truth of the matter in issue.</p>

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

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

<p>If a plea of non est factum be not sworn to, a demurrer to it will be sustained.</p> <p>A justice’s transcript certified by his successor was, though objected to, admitted in evidence. Held, that the admission of the transcript (the record not showing the ground of the objection) could not be said to be improper.</p> <p>Hearsay evidence is inadmissible.</p> <p>In a suit on a justice’s bond, the breach assigned was the justice’s failure to pay , over money collected on a judgment. Held, that the judgment-debtor was not a competent witness to prove his payment of the money to the justice.</p> <p>A judgment in a cause which had /been submitted to the Court will not be reversed on account of the admission of illegal evidence, if the judgment is right independently of that evidence.</p> <p>The admission of certain facts by the principal obligor, in which facts he and his sureties were jointly interested, is admissible evidence against them all.</p> <p>The demand required to be made on a justice of the peace before a suit for money collected by him can be sustained on his bond, may be made at any time before the commencement of the suit.</p> <p>A declaration in such suit which stated that the justice, by virtue of his office, had collected and received the money, substantially avers that the money was received by the justice whilst he was in office.</p>

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

<p>It is not sufficient in an indictment under the statute prohibiting the cutting down of any timber-trees, &c., to charge that the defendant cut a certain timber-tree, &c.</p>

<p>By the statute of 1831, a bill of foreclosure, &c. (the mortgage-debt being payable by instalments) would not lie, until the day of payment of the last instalment was past.</p> <p>A decree in chancery cannot be rendered against an infant defendant without proof, though the answer, filed by his guardian ad litem, admit the bill to be true.</p>

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

<p>In a suit on the assignment of a promissory note, the declaration stated that the term of the Court at which the plaintiff had obtained judgment against the maker, was adjourned on the 7th of September, 1839, and that a fi. fa. issued on the judgment on the 21st of the same month. Held, that the declaration showed, prima facie, sufficient diligence in taking out execution.</p>

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

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

<p>If on the sale of real estate a title-bond be given, and the purchase-money, being an adequate consideration, be paid, and a third person afterwards, but previously to the execution of the conveyance, obtain judgment against the vendor, a Court of Chancery will relieve the purchaser or his assignee against the judgment, whether the judgment-creditor had or had not notice of the contract.</p> <p>A Court of Chancery will not, where there is no emergency, grant an injunction, unless ten days’ notice of the application have been given to the adverse party, or the application relate to a suit pending in the Court.</p> <p>But where the Court has granted an injunction in a case in which the adverse party was entitled to notice, and the transcript does not show whether the notice was given or not, the Supreme Court will presume that the notice was given.</p>

<p>If an assessment of damages on a writ of ad quod damnum be proved to be too high or too low, the Circuit Court may set it aside and order another assessment.</p> <p>On such writ, issued after the dam was built, damages were assessed and not objected to. The Court gave judgment on the assessment, and ordered that, on payment of the damages and costs, the petitioner should “have leave 'to continue his dam, and to flow said lands as they were flowed by said dam at the time of said inquest.” Held, that this order could not be complained of by the petitioner.</p>

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

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

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

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

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

<p>The defendant in ejectment may defeat the suit by proving the title to the premises to be in a third person.</p> <p>The cancelling of a conveyance of real estate does not divest the grantee of his title.</p> <p>Ejectment. The lessor claimed title to the premises as a purchaser at sheriff’s sale. The defendant offered to prove that previously to the judgment under which the lessor purchased, the judgment-debtor had conveyed the premises to one W. who after said judgment surrendered and cancelled the deed, and consented to the grantor’s conveyance of the premises to another. The deed to W. was not recorded, but the lessor purchased with notice of it. Held, that the evidence,was admissible to prove that the title of the premises was in W.</p>

<p>Ejectment for two town-lots. The lessors gave in evidence a deed from M‘G. (who was the patentee of a fraction of land containing the lots in controversy) to C. B., dated February 24th, 1818, for thirty acres of land, described by metes and bounds, and as being the same land on which J. R. then lived ; a deed from G. B. to I. B., dated August 28th, 1818, for the same land; and a deed from I. B. to E., one of the defendants, and A. C., dated September 23d, 1818, for two undivided third parts of the same. The lessors also proved the death of A. C., that they were a part of his heirs, and that the other heirs had conveyed their interest in the thirty acres of land (which includes the premises described in the declaration) to them. The defendants were in possession at the commencement of the action.</p> <p>The defendants gave in evidence a deed from M‘ G. to E. and one J., conveying to them one hundred and thirty acres of land in fee-simple (describing the same by metes and bounds) “with the exception of thirty acres heretofore (theretofore) conveyed to C. B.” This deed bore date June 20th, 1817. The land described in it includes the thirty acres mentioned in the deeds adduced by the lessors.</p> <p>The lessors then proved that J. R. (who was dead at the time of the trial) lived on and occupied said thirty acres of land during the years 1816, 1817, and a part of 1818; and they offered to give in evidence his admissions that he held the land as the tenant of C. B., which evidence being objected to was rejected.</p> <p>The Court instructed the jury that if the deed to E. and J. was the oldest one given in evidence, they should find for the defendants.</p> <p>Held, that the exception in the deed to E. and J. was valid on its face. Held, also, that the evidence rejected should have been admitted. Held, also, that the instruction to the jury was erroneous.</p>

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

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

<p>If a creditor receive the principal sum due him, he cannot afterwards sue for the interest.</p>

<p>No person can, according to the constitution, hold more than one lucrative office at the same time, except, &c.</p> <p>The offices of county recorder and county commissioner are lucrative offices within the meaning of the constitution.</p> <p>A county recorder, by accepting the office of county commissioner, vacates his office of recorder.</p>

<p>Indictment for obtaining a transfer of certain real property by payment therefor in notes of a certain bank; the defendant falsely pretending that the bank and its paper were good, when in truth, as he well knew, the bank was insolvent and its paper worthless. Held, that the notes were sufficiently described: but that the indictment was bad ; the obtaining of a transfer of real property by false pretences not being indictable.</p>

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

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

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

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

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

<p>The city of Madison brought an action of debt before the mayor thereof, claiming a sum not exceeding twenty dollars. The suit, which was founded on an ordinance of the city, was for an assault and battery committed by the defendant within the city. Judgment against the defendant by the mayor for twenty dollars. Held, that the mayor, though he was by the charter, ex officio, a justice of the peace, had no jurisdiction, under the constitution of the state, to render such judgment.</p>

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

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

<p>The Wabash and Erie canal lands, purchased of the state under the act of 1830, (part of the purchase-money being unpaid, and the legal title remaining in the state,) were liable for county and road taxes under the revenue laws of 1839 and 1841.</p> <p>The act of 1834 exempted said lands, when sold by the state, from taxes until payment of the purchase-money; but that act (the right of repealing it being reserved) did not prevent the legislature from afterwards including those, lands, sold before or after its passage and not paid for, in the list of taxable property.</p>

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

<p>Indictment in the Wayne Circuit Court for retailing spirituous liquors on the 1st of September, 1844, without license. Held, that the circumstance that the sale was made in the city of Richmond, in Wayne county, was no defence.</p> <p>The charter of a municipal corporation, as of a city, &c., may be amended at any time by the legislature.</p>

<p>The overruling of an objection to evidence is not assignable for error, unless the record show the -ground of the objection, and that the same had been pointed out to the Court below.</p> <p>The insufficiency of the evidence to sustain a verdict cannot be assigned for error, unless it appear by the record that a new trial was moved for in the Court below.</p> <p>The defendant in ejectment can defeat the suit by proving the title to the premises to be in a stranger.</p> <p>A conveyance of real estate in the adverse possession of a third person is void.</p> <p>A. conveyed a tract of land to B. by a deed without covenants, which land was, at the time of the conveyance, in the adverse possession of C. The possession of the land was afterwards recovered by B. in an action of ejectment against the heirs of O. In a subsequent action of ejectment by the lessee of those heirs against B. for the premises, the defendant offered in evidence A.’s deposition, which was objected to on the ground that the deponent was interested. Held, that the objection was untenable.</p>

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

This was an action of ejectment, commenced in January, 1843, for real estate in Wayne county. The lessee of a mortgagee was the plaintiff, and the mortgagor and a person claiming under him were the defendants. Plea, not guilty. Verdict and judgment in August, 1844, for the plaintiff.

<p>No general rule can be laid down as to what constitutes multifariousness in a bill in equity. The Court must exercise a sound discretion in determining, from the circumstances of each case, whether a bill is liable to that objection.</p> <p>A bill in chancery for a partition of lands will not be considered multifarious, on account of any pertinent statements it may make in setting forth the title of the complainant conformably to the requisitions of the statute.</p> <p>If a bill for a partition of several tracts of land show a right in the complainant to have one of the tracts divided, a demurrer to the whole bill 'should be overruled.</p>

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

<p>Where there is a misjoinder of counts, the defect may bo cured by amendment.</p> <p>If a declaration contain two counts, and there be a plea to one and an issue in fact thereon, and the other be unanswered, a general verdict for the plaintiff (the record not showing to which count the evidence was applied) cannot be sustained.</p> <p>Debt on anote as follows: “Logansport, December 18, 1838. Due John Hooner 717 dollars and 68 cents, to be paid as soon as it can be collected by bringing suits on the notes and accounts that were taken for flour and provisions. Henhj Weirick.” The plaintiff proved that in December, 1839, the defendant agreed to give a new note, payable one day after date, in place of the above, if the plaintiff would throw off the interest thereon. He also proved that tho note sued on was given for flour, &c., which the defendant had sold on commission. Held, that the plaintiff might then prove that the sale of the flour, &c., was to be for cash only. Held, also, that the note sued on might draw interest before the claims mentioned in it were collected. Held, also, that the defendant’s offering to give a new note as above stated tended to show that said claims had boon collected.</p>

<p>If after a sheriff has levied an execution on a tract of land, the execution-debtor lay off the land into town-lots, the sheriff will not be bound, on the mere request of such debtor, to sell the lots separately.</p> <p>A judgment-debtor deposited with the judgment-creditor’s attorney certain claims as security, taking receipts therefor in which the attorney engaged to apply so much of the proceeds as he should be able to collect, to the payment of the judgment. Held, in a suit in chancery by the debtor, that he was not entitled to a credit for said claims until they were collected, unless they had been lost, or had remained uncollected, through the creditor’s negligence. Held, also, that had said receipts purported to have been for actual payments, an allegation in the answer that they were for claims deposited as security, &e., would have required proof.</p>

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

<p>It was held that the following clause in a will, “I will next that all my estate after my children are of age and the decease of my wife shall be equally divided among my children,” if unaffected by any other part of the instrument, would give to the wife a life estate by implication; but that no such implication could arise, where the property was disposed of by other parts of the will.</p> <p>In the construction of a will, the intention of the testator collected, not from any particular clause, but from the whole of the will, must govern.</p> <p>A will must be construed according to the law in force when the testator died.</p> <p>Previously to the R. Statutes of 1843, if a devise to the wife did not state that it was in lieu of dower, and her claim to doWer was not inconsistent with the will, she had a right to take dower and also the provision under the will.</p>

<p>Qumre, whether the refusal to permit a plea puis darrein continuance to be withdrawn, after a demurrer to it had been sustained, can be assigned for error.</p> <p>A plea puis darrein continuance is a waiver of all previous pleas.</p> <p>Such plea requires the highest degree of certainty.</p> <p>Suit on a covenant to be performed on condition of the plaintiff’s prior performance of a certain act. The declaration, which did not aver performance of such act, or show an excuse for its non-performance, was held to be bad.</p>

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

<p>An indictment alleged that the defendant being a justice of the peace, as such justice charged A. with committing an assault and battery on B. on the justice’s view, without complaint on oath or affirmation having been made; that the justice verbally required A. to appear before him to answer the offence; that A. appeared without consenting to do so; that the justice thereupon, without a plea of guilty and without proof, fined him, A., three dollars, and collected the fine-; that the justice, in the administration and under colour of his office, unlawfully and oppressively took cognizance of said offence, and unlawfully and oppressively rendered said judgment and collected the money, contrary to the form of the statute, &c. Held, that the indictment was insuf- „ . , ficient.</p>

<p>An indictment for gaming need not state the name of the game played, but there should be in it some description of the game, as that it was with cards, dice, &c.</p>

<p>ERROR to the Huntington Circuit Court. The bill in this case was dismissed for want of equity.</p>

<p>Where an indictment for gaming charges the defendant with winning or losing with several persons, &c., proof that the winning or losing was with a part of those persons is not sufficient.</p> <p>An indictment for gaming may be sustained against the person who made the bet, though another person furnished the money.</p>

<p>Debt against A., administrator of B., on a bond alleged in the declaration to have been executed by B. together with C., D.¡ and E. The,bond, as appeared on oyer, had on its face as obligors the names of B., C., D., E., and F. The declaration showed the bond to be joint, but it did not show that F. had sealed the bond or that he was living. Held, that the declaration was not objection- ■ able on the ground of variance.</p> <p>The failure to prosecute an appeal from a justice’s judgment, in consequence of the death of the appellant, is a breach of the condition of the appeal-bond.</p>

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

<p>If a bond sued on at law had been satisfied by a settlement between the parties before the commencement of the suit, the settlement is a plain defence to such suit; and if the Court refuse to admit the defence, and render judgment for the plaintiff, the defendants remedy is not a bill in chancery to enjoin the judgment, but an appeal or writ of error.</p> <p>The circumstance that a Court of law has decided a question of law erroneously, is not a sufficient ground for an application to a Court of chancery to enjoin a judgment in the suit.</p>

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

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

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

<p>The innuendoes in a declaration in slander should be warranted by the previous allegations.</p>

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

<p>If the defendant in an action of debt by A. rely on payment as garnishee in attachment, he should show that the debt paid by him as garnishee was the same debt for which he was sued by A.</p> <p>A justice of the peace had no authority, previously to the Revised Statutes of 1843, to issue a summons against an executor as garnishee in attachment.</p>

<p>A. sold and convoyed a tract of land to B. Afterwards A. purchased back the land from B., paid him for the same, and took possession; B., at the same time, delivering up to A. to be cancelled the deed which had been executed to him by A., and which had not been recorded. No conveyance was executed by B. to A. Held, that the legal title to the land remained in B. Held, also, that a judgment rendered against A. after said deed was delivered up to him to be cancelled, was not a lien on the land.</p> <p>The case of Modiseit el al. v. Johnson et al., 2 Blackf. 431, as to the liens of judgments, reviewed and confirmed.</p> <p>A conveyance of real estate will, if not recorded in time, be defeated by a subsequent one, if the latter be first recorded; unless the subsequent purchaser had notice of the prior conveyance.</p> <p>The statute of 1838 protecting subsequent purchasers and mortgagees against unrecorded conveyances, does not relate to subsequent judgments.</p> <p>The protection of a purchaser under such judgment is the same with that of any other purchaser, dating the purchase at the time of the sale.</p>

<p>A publication to be a libel must tend to injure the plaintiff’s reputation, and expose him to public hatred, contempt, or ridicule.</p>

<p>The improper admission of testimony, which could have had no effect on the decision of the cause, cannot be assigned for error.</p> <p>If land mortgaged be sold under a decree of foreclosure, &c., the purchaser will be entitled to the crops growing at the time of the sale, in preference to a person claiming under the mortgagor and whose claims originated subsequently to the mortgage.</p> <p>The statute of 1843, depriving a mortgagee of the right of possession, has no effect after foreclosure and sale of the premises.</p>

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

<p>It is a general rule that where a sole defendant dies after judgment and before execution, an execution issued without a revivor of the judgment by scire facias is void.</p> <p>This rule is applicable to tho action of ejectment.</p> <p>The associate judges of one county have no authority in vacation to restrain, by injunction, the execution of a writ of habere facias possessionem directed to the sheriff of another county.</p> <p>If a judgment of the Circuit Court be right, though placed on wrong ground, it will be affirmed.</p>

<p>The act of 1841 requiring that whenever any judgment-debtor was not able or neglected to take the stay, as provided in the laws then in force, his property should be sold on the same credit, &c., was held not to apply to a sale under a distress-warrant for rent.</p>

<p>Debt for money lent and other causes of action. Held, that a plea to the whole declaration of a former judgment in a suit by the plaintiff on a promissory note and for work and labour was bad, as he could have given no evidence in ' the previous suit of money lent.</p> <p>The record produced to support a ploa of a former judgment, should be of a judgment in a suit in which the causes of action subsequently sued for might have been proved.</p>

<p>ERROR to the Clinton Circuit Court. The verdict and judgment were for the defendants.</p>

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

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

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

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

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

<p>It is sufficient in slander that so many of the words of any set charged be proved as constitute, of themselves, the slanderous accusation.</p> <p>The practice as stated in Mann et al. v. Clifton, 3 Blackf. 304, when a party discovers any of his witnesses to be intoxicated, was recognized as correct.</p> <p>A party moved for a new trial on the ground that a material witness for him was incapacitated, by intoxication, to give evidence on the trial. For aught shown by the affidavits in support of the motion, the party might have previously known of the intoxication, and have been instrumental in occasioning it. Hold, that the motion was rightly overruled.</p> <p>Queen as to the amount of damages recoverable in slander, if the defendant spoke the words when intoxicated and in the heat of passion.</p>

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

<p>Held, that whilst the obligee of a bond of an administrator, conditioned for a title to land sold under an order of the Probate Court, retained possession of the land and of the bond, he could not claim a rescission of the contract on account of the misrepresentations of the administrator and the widow as to dower in the land.</p> <p>Quiere, whether where the obligee of such bond has received a partial benefit by having had possession of the land, he can have a right to rescind.</p>

<p>Assumpsit by the assignee against the maker of a promissory note governed by the law-merchant. Plea, that the plaintiff had previously sued the indorsers and obtained judgment against one of them, the process not having been served on the other; that the now defendant had entered himself bail for the stay of execution on said judgment; and that the bail was sufficient. Held, that the plea was bad.</p> <p>Where there are two issues, one in law and the other in fact, the plaintiff cannot have final judgment until both issues are found in his favour.</p>

<p>Where a material allegation in a bill in chancery is denied by the answer it must be proved.</p> <p>If at the time of A.’s assignment of an agreement for the purchase by him of real estate, the premises are occupied by a third person, such occupancy is constructive notice to the assignee of the occupant’s title.</p> <p>But if the possession is vacant, the assignee need not inquire of the late occupier what was the nature of his title, and will not.be held to have implied notice of the information which he might have obtained by inquiry.</p> <p>A person who purchases an equitable title without notice of a prior equity, and afterwards, with notice, buys in a legal title to support his equitable one, will be protected.</p> <p>Although an assignment by A. to B. of an agreement be objectionable on account of A. 's intoxication when he execute^ it, the objection will not affect B.’s subsequent assignment of the agreement to C. without notice.</p> <p>An agreement made by county commissioners, not at a regular session of the board but in vacation, is not binding on the county.</p>

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

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

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

<p>A crime punishable in this state by confinement in the penitentiary is considered a felony.</p> <p>If it appear that the several counts in an indictment charge distinct felonies, and not one and the same felony in different modes, the indictment should be quashed.</p> <p>Qucere, whether the joinder of counts for distinct felonies in 'an indictment is a good cause for quashing part of the indictment.</p> <p>An indictment charged that the defendant falsely pretended to one A. that B., C. , and D. were indebted to him, the defendant, in a certain sum, and that they were bound to pay a certain bill of exchange, then in the defendant’s possession and over due, drawn by the defendant on said B., C., and D. , payable to their order ninety days after date, and accepted by them, and which the}' indorsed to the defendant who indorsed it to said A.; that, by said false pretences, the defendant obtained from said A. certain goods with intent to cheat, &c.; whereas, in fact, the said B. and C. were not then indebted to the defendant, nor were said B., C., and D. bound to pay said bill. Held, that the first pretence was not sufficiently negatived, and, as to the second, that there should have been an averment that the defendant knew that B., C., and D. were not bound to pay the bill.</p> <p>Quare, what must be the character of the false pretence by which money or goods have been obtained to render the offence indictable.</p> <p>An indictment for obtaining goods by false pretences must state to whom the goods belonged. /</p>

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

<p>Slander for charging the plaintiff with perjury. Plea, that the charge was truo. Held, that to support the plea, the truth of the charge must be proved, beyond a reasonable doubt, by such evidence as would justify a conviction on an indictment for the offence.</p> <p>Evidence, in slander, that the defendant had, after speaking the words laid, repeated them at different times, is inadmissible for the plaintiff in aggravation of damages.</p> <p>But such evidence, where the defendant’s intention in speaking the words is at all equivocal, is admissible to show malice.</p>

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

<p>On the 24th of September, 1845, A. and B. made a written agreement, by which the latter sold to the former one hundred hogs to be delivered between the 1st and 25th of tlíé next December. A. was to pay three dollars per hundred weight for the hogs. He paid 100 dollars down, and was to pay the further sum of 540 dollars On or before, the 27th of November, 1845. He failed to pay such further sum by the last-named day, but, on the 2d of December following, he tendered that amount to B. Who refused to receive it, alleging that as A. had failed to pay the money according to the agreement, he, B., had sold the hogs to C. B. contracted with C. for the hogs on the 29th of November, 1845, but did not deliver them to him till the 10th of December following. On the day before they were thus delivered, A. again offered to pay B. the balance due according to his contract if B. would deliver the hogs to him, which B refused to do.</p> <p>Held, that A. might recover from B., in an action for money had and received, the 100 dollars advanced as aforesaid.</p>

<p>The declaration in a suit on a sealed note, brought by the assignee of the payee against the maker, need not aver that the defendant had had notice of the assignment.</p> <p>And the amending of the declaration in such suit by inserting an averment of such notice, is no cause for a continuance.</p> <p>A plea in such suit of payment to the payee should state that the payment was made before notice of the assignment.</p> <p>Semble, that if a defendant refuse to join in a demurrer to his plea, judgment may be rendered against him as for want of a plea.</p>

<p>If the time limited by statute for commencing a suit expire whilst the statute is in force and before the suit is brought, the right to bring the suit is barred; and no subsequent statute can renew that right.</p>

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

<p>The oral affirmation of a person as to the quality of an article sold by him, where the buyer had an opportunity of inspection, is not a warranty unless it be so intended by the parties.</p> <p>And whether such affirmation was intended to be a warranty depends on the proof, and is a question for the jury.</p> <p>A cause having been tried by the Court, under the statute, stands as if it had been tried by a jury.</p> <p>And if the judgment of the Court in such case, on the weight of evidence, be not clearly wrong, it will not be reversed.</p> <p>Although such an affirmation as that mentioned above be false, it will not be considered fraudulent unless it was known to be false by the party making it.</p> <p>In the sale of molasses in barrels at the market-price to a grocer to retail, where the quality of the molasses is not examined (the barrels being present at the sale), there is no implied Warranty that the molasses is fit for the purpose for which it is purchased.</p>

<p>If a plaintiff, whose declaration contains some good and some bad counts, obtain a general verdict, the judgment will not be arrested, under the statute, on account of the bad counts.</p> <p>In the case of such declaration, the Court, on the defendant’s motion, may instruct the jury to disregard the bad counts.</p> <p>In an action for malicious prosecution, malice is a question of fact for the jury; and in such action, the jury may infer malice from the want of probable cause, but are not bound to do so.</p> <p>The existence of any fact relative to the issue may be proved.</p>

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

<p>The award of damages, for injury'to land occasioned by the White Water Valley Canal, should be reported to the secretary of the canal company.</p> <p>An appeal from such award is governed by the law regulating appeals from justices of the peace; regarding said secretary as the justice for all purposes of the appeal, t</p> <p>Such appeal lies only to the Circuit Court of the county in which the land is situate.</p> <p>From an award in such case (the land injured lying in Franklin county), the canal company prayed an appeal, directing their secretary to file the papers in the Fayette Circuit Court. The papers were accordingly filed in that Court, and remained there for a year, when they were withdrawn by the company and filed in the Franklin Circuit Court. Held, that it did not appear to be the secretary’s fault that the papers were not filed in time in the last-named Court. Held, also, that no legal appeal appeared to have been taken.</p> <p>The appeal-bond in such case did not designate the Court to which the appeal was taken, nor did the transcript mention the prayer of appeal. Held, that proof of a parol prayer of the appeal was admissible.</p>

<p>A person was indicted, under the statute of 1843, for keeping a disorderly house called a Tippling house, whero he sold liquor without license, and gathered together noisy, drunken people, who kept quarrelling, fighting, &c., to the great annoyance and disturbance of the people, &c. 1?eld, 1. That the of-fence was not limited to a case where the sale of liquor was by a less quantity than a quart; 2. That the defendant might be liable, though the quarrelling, fighting, &c., were in the street; 3. That the state was not bound to prove that the defendant knew of the alleged annoyance, &c.</p> <p>The right of challenging jurors in Decatur county has been, since the act of 1846 on the-subject, governed by the general law.</p> <p>And by the general law on the subject, each of the parties may, under certain circumstances, challenge six jurors peremptorily.</p> <p>When such challenge has been allowed, it must be presumed, the contrary not appearing, that the same was authorized by the circumstances of the case.</p>

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

<p>Case. The facts ’were as follows: The defendant, who was an innkeeper, had taken the plaintiff’s horse to keep a few days before the accident happened which occasioned the suit. The plaintiff rode out the horse one evening, and, on returning to the stable, tied him in the stall where he had been previously kept. The next morning, the horse was found dead in the same stall with his head fast in the trough. The trough was mudo of a hollow beach log, having a bulge in the middle which rendered that part of the trough wider than it was at the top. The horse had got his head fast in the trough by the jaws, and, as the witnesses supposed, had killed himself in the attempt to draw it out. Held, that the plaintiff was not entitled to recover.</p>

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

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

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

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

<p>.If to a plea of the statute of limitations in slander, the plaintiff reply that the words were spoken within the prescribed time, he must prove the speaking of some of the actionable words within that time.</p> <p>Slander. Pleas, not guilty and the statute of limitations. No replication to the special plea. Verdict and judgment for the plaintiff. Held, that, the special plea being unanswered, the trial was not legal.</p>

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

The transcript in this case shows, that, in conformity with the act of 1846 referred to in the opinion of the Court, a vote had been taken in Centre township, Marion county, and that the voters had thereby determined, by a large majority, against the granting of licenses to retail spirituous liquors in said township; and that the board of county commissioners had been duly notified of said vote previously to the retailing of spirituous liquors by the defendant as charged in…

<p>The defendant promised the plaintiff, in consideration of a wagon delivered to him by the plaintiff at the time of the contract, to break up for the plaintiff sixteen acres of new ground on or before a certain day. Held, that the piece of ground to be broken up, if not specified in the contract, might be designated by the plaintiff.</p> <p>If in such case the plaintiff designate land of such a character as to authorize the defendant’s refusal to break it up, that fact should, in a suit for such refusal, be shown by the defendant.</p> <p>In a suit against the defendant for not breaking up the ground, the value of the work, not that of the wagon, is the measure of damages.</p> <p>An erroneous instruction to the jury cannot be assigned for error, if it be clear that the jury were not misled by the instruction.</p>

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

<p>Tlie assignee of a second mortgage filed a bill of foreclosure, making B., the assignee of the first mortgage, one of the defendants. B. answered, praying for a- sale of the mortgaged premises and for a priority of payment. Held, that, in case of a sale, B. should be first paid.</p> <p>Where a mechanic’s lien accrues on premises previously mortgaged, the mortgage must be first satisfied.</p>

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

<p>It was not necessary, under the charter of the Newcastle and Andersontown Turnpilce Company, that the whole amount of the capital, namely, 100,000 dollars, should be subscribed before the work was commenced.</p> <p>After stock in said company to the amount of 300 dollars had been subscribed, directors were elected; and there was subsequently an additional subscription of stock, making the whole amount subscribed 23,000 dollars. Held, that, under these circumstances, the work might be commenced, &e.</p> <p>Held, also, that in case of an illegal election of directors of said company, the remedy was at law.</p>