Volume 8 — Indiana Reports

<p>The Ohio river is a common highway, and its character in that respect is not restricted to what may he called the channel.</p> <p>Persons navigating the Ohio river may, without incurring the fault of culpable neglect, run their boats in any part of the stream where the water is of sufficient depth to carry them safely.</p> <p>Where a person’s business or property is injured or endangered by an obstruction in a watercourse, he may remove it; but he will not be allowed to leave it at a place in the stream where it would bo likely to endanger the property of navigators.</p> <p>The value of a cargo at or near the place where the vessel was lost, is not an unreasonable measure of damages, where the loss was the result of the defendant's misconduct.</p>

<p>The act. of February 11th, 1848, repealing the act for the relief of the Miami Indians, &c., of February 3d, 1841, and the act relative to suits against the Miami Indians, of February 11th, 1843, did not repeal the 3d section of chap. 28, K. S. 1843.</p> <p>The courts will not construe a statute strictly, merely because it imposes disabilities, especially if, by strict construction, the object of the legislature would be defeated.</p> <p>Protective and remedial statutes imposing disabilities upon persons far their benefit, must receive a liberal construction.</p> <p>A person recognized as an Indian by the community, by the Indians themselves, by the State and federal authorities, — stamped as such by birth, education, and language, — and having three-eights Indian blood, is held to be an Indian, -within, the meaning of the statutes of this State relative to Indians.</p> <p>The laws of this State relative to Indians, are in pari materia, and must be construed together, whether repealed or not.</p> <p>Section 4 of the Indian act of February 3d, 1841, provides, “that in all cases, the provisions of this act shall extend to all persons of Indian descent, who are recognized as members of any tribe residing in the State of Indiana, down to those having one-eighth Indian blood.” Held, that this is the legislative meaning of the word “Indian,” as used in all other statutes of this state on the same subject, unless, from the ■context, or in terms, some modification was clearly intended.</p>

<p>Suit by the assignee on the following instrument: “150 dollai-s, August 22, 1845. Thirty days after date, I promise to pay St. Bt. Juda and owner’s, or ox-der, one hundred and fifty dollars for services rendered St. Bt. Seabird. N. Moore."</p> <p>Held, that the instrument is a note, negotiable under the B. S. of 1843.</p> <p>Held, also, that under the B. S. of 1843 the real name of the payee not be expressed in the note, but that he may be designated by any style or desci’iption agreed upon between the parties.</p> <p>To prove that William C. Anderson and Joseph H. Corn constituted the firm of Anderson and Corn, the record of a suit between William N. Anderson and Joseph H. Conn and Nathaniel Moore, was offered in evidence by the plaintiff and resisted, on the ground of variance, by the defendant, but the Court admitted it. Held, that the surnames Conn and Corn being idem sonans, the variance was immaterial.</p> <p>The registration of a vessel, based upon the oath of the master, instead of the owner, is not on that account objectionable in evidence; and, though the registration is no- evidence in favor of one claiming as owner, and insufficient to charge any one as such; yet where the question of ownership is merely incidental, it is prima facie evidence.</p>

<p>On an appeal to this Court, the record of the Court below must not only show all the evidence, but it must appear that a motion for a new trial was made and overruled.</p>

<p>The evidence cannot be regarded as properly a part of the record until the Court has been called upon by motion for a new trial, to review alike its own finding, or the verdict of a jury.</p>

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

<p>Under section 23, R. S. 1843, p. 767, attaching creditors, having obtained judgment at lav, must proceed at lav; and the question, whether the garnishee has illegally disposed of the attached property, after service' of the writ of attachment, is triable at law and not in equity.</p>

<p>A father promised his infant son to convey to him certain land, in consideration of his services until he should be twenty-one years of age. The son worked for his father until he was twenty-two years of age; at the end of which time, the father renewed his promise, transferred the land on the tax-list, and gave the son possession. The son made improvements, largely enhancing its value. The father suddenly died intestate, without executing a conveyance. The son brought his petition for specific performance, against the other heirs. Held, that the year’s service after the son became of age, constituted a valuable consideration; and that the entry and improvements, coupled with the acts of the father, took the case out of the Statute of Frauds.</p> <p>Where the contract is certain, fair in all its parts, founded on a valuable consideration, does not interfere with the rights of creditors, and is capable of being performed, the courts will generally decree specific performance.</p>

<p>Section 17, of the charter of the town of Vevay, provided that “whenever the owners of lots on any street shall be desirous of making any improvements, &c., two-thirds of the owners of real estate on such Street, and representing two-thirds of the whole number of feet on each sicle of such street, shall petition,” &c. By a subsequent act the section was so amended as “to authorize such improvements to be made upon the petition of a majority of the owners of real estate on the street,” &c.; but the amending act is silent as to the number of feet, &c. Held, that the amendment went dii’ectly to the number of petitioners, and did not affect the provision touching the number of feet.</p> <p>Municipal corporations are t'o be held strictly within the limits prescribed by statute; but within these limits they are favored by the courts.</p> <p>Powers expressly granted, or necessarily implied, are not to be defeated •or impaired by a strict construction; but the acts authorized by a charter must be done in the manner prescribed by that instrument; and, especially where such acts affect private property, the powers granted must be strictly pursued.</p>

<p>Suit may be brought before a justice of the peace in the county where the cause of action arose, against a resident of another county, found within the justice’s jurisdiction.</p> <p>Section 13, 2 E. S., p. 453, does not interfere with the common-law right of suing in transitory actions, except where the suit is against a resident of the county.</p> <p>The application of the words of a statute may be enlarged or restrained to bring the operation of the act within the intention of the legislature, when no violence is done by such interpretation to the language of the statute.</p>

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

<p>A writ performs its office in arresting the defendant, and a motion to quash it after he has entered into recognizance, is nugatory.</p>

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

<p>Creditor's bill to set aside a conveyance alleged to have been fraudulently made. Uncorroborated testimony of one witness to fraud in the vendee] and that witness implicated by his own testimony as a participant in the fraud.</p> <p>Meld, that, under the R. S. 1843, p. 89, s. 44, the evidence did not sustain the bill.</p> <p>Held, also, that the testimony of such a witness ought to be strongly corroborated, to authorize a decree upon it against the defendant’s answer under oath.</p> <p>The payment of a full price will not purify a fraudulent transaction; but such payment will be entitled to great weight where the proof of fraud is not clear.</p>

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

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

<p>A parol contract to sell and and deliver, at 60 dollars per tun, -whatever broom-corn should be raised in 1853 on twenty-five acres of land, is within the Statute of Brands and void.</p> <p>Our Statute of Frauds is substantially that of Charles II.; and with the statute, the courts generally adopt the English construction of it.</p>

<p>Husband and wife joined in a conveyance of all the interest of the wife in the estate of her deceased father. The deed was in general terms, not describing any tract of land, or parcel of property. The acknowledgment was taken in the usual form in Queens county, New York, on the 29th March, 1847, before one Bissell, acting as commissioner of deeds for Virginia. On the 7th of April, 1847, the wife died. On the 22d October, 1847, Bissell, acting as commissioner for the state of Ohio, and notary public for the county of New York, indorsed on the deed another certificate of acknowledgment, of the same date, and in the same words as the first. Meld, that the wife never acknowledged the deed in conformity to the laws of Indiana, and that, therefore, her conveyance is wholly void as to lands in this State.</p>

<p>The infant father of a bastard child may settle with the mother, and' execute the instruments necessary in making such settlement.</p> <p>In a suit upon such an instrument the plea of infancy is bad.</p>

<p>A. in one clause of Ms last will, devised, to Ms sons B. and G:, Ms real estate, describing it, and Ms personal, subject to Ms widow’s dower. He further directed his executors to purchase “ from the widow her dower, in the said premises, for the use of said B. and G.”</p> <p>Held, that this was a devise of the entire personalty, subject to the payment of debts, and the 150 dollars expressly allowed by statute to the widow, and of the real estate, subject to the widow’s dower.</p> <p>Held, also, that such a devise is valid.</p>

<p>A warrant of attorney to “enter” judgment, authorizes the attorney to confess judgment, — especially where it was clearly intended to clothe him with that power.</p>

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

<p>APPEAL from tbe 'Bartholomew Circuit Court.</p>

<p>The unascertained, distributive shares of a decedent’s estate in the hands of the executor, are effects liable to the process of garnishment.</p>

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

<p>Unless exception be taken and entered upon the record, in the manner prescribed by statute, at the time the decision is made by the Court below, it is waived, and the record presents nothing to be determined by the Supreme Court.</p> <p>Under the practice act of 1852, the plaintiff may set up in his reply several independent defenses, and tender several issues, provided they are not inconsistent with his complaint.</p> <p>The inconsistency of the reply and the complaint is the same defect known in common law pleading as a departure. ,</p>

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

<p>Suit for injury to'plaintiff’s land and mill, by means of water backed upon them by a dam maintained by defendants. Defendants, in one paragraph of their answer, averred that they had a right to maintain the dam because it was erected in the year 1826, to propel a mill, and had been continuously used by them and other persons under whom they claim, without molestation or hindrance, from 1826 till the commencement of this suit, at which 'time they had peaceable possession, and were using the dam to propel a mill, as they lawfully might. Held, that the paragraph was bad on demurrer because it did not aver that the possession or user was of right, or under claim of title.</p> <p>The Court instructed the jury in this case, that “the continuance of an unauthorized dam or obstruction in a stream or watercourse, even for a great length of time, of itself confers no right upon the parties to further maintain the same to the injury of any.other person interested in the use of the stream. Held, that the instruction was correct, but too narrow: the Court might have added that possession or user, under claim of right, does confer title, when continued for twenty years; and that the jury might infer possession under such claim, from simply twenty years unexplained possession.</p> <p>Evidence'of a suit brought within twenty years against the occupants of á mill dam, but compromised, is admissible to rebut the presumption of an easement by prescription.</p> <p>Where a dam had been in existence more than twenty years, but had been raised a foot higher within twenty years, the occupant, in defense to an action against him for backing up the water to the injury of property above, claimed a prescriptive easemenf. Held, that to establish the prescription, the easement must have been enjoyed for twenty years, to the extent claimed at the trial.</p>

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

<p>Ejectment under the old practice. The conveyance to the plaintiff’s lessor was made by an infant, who died before attaining his majority. The defendant asked that the jury be instructed to disregard the conveyance. The Court refused to give the instruction. Held, that, the conveyance of an infant being voidable only and not void, the instruction was correctly refused.</p> <p>The defendant in ejectment, to show title, offered in evidence the record of a judgment, and the proceedings thereon, showing that the premises in question had been sold and conveyed to him by sheriff’s deed. The judgment had been taken by default upon a declaration containing two several counts on two several notes. One of these notes was made before the appraisement law of 1842 took effect, the other, after it came in force; but there is nothing in the record showing that the judgment was restricted to one count only. The defendant admitted that the property had not been appraised. Held, that the judgment was rendered upon both the notes, and, therefore, there having been no appraisement of the property, the sheriff’s deed was no evidence of title.</p>

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

<p>In criminal cases, the party accused is hound to except to the ruling of' the court against him, if he wishes to hare the question reriewed in the Supreme Court.</p> <p>Where the defendant on trial for murder, made affidavit for a continuance, reciting what he expected to prove by absent witnesses, and the Court permitted the prosecuting attorney to “admit the affidavit" and proceed with the trial; it is held that the defendant was entitled to the benefit of the entire affidavit as evidence, and that the Court could not permit a part of it to go to the jury, and withhold the rest.</p>

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

<p>In the year 1837, A. sold B. eighty acres of land on which there was a mill, ' and gave a title-bond. Afterwards B. sold the land to C, and assigned1 to him the title-bond. O. and his son had been working and dealing in partnership, and had unsettled accounts. In August., 1845, 0., having paid for the land, directed the deed to be made to his son. The deed was delivered to the fatliei’, the son not being present. The father afterwards delivered it to the son. In the year 1846, the father and son had a settlement of accounts, when it was agreed that the son should have seventy acres of the land and the father ten acres, embracing the mill. In the year 1848, the son purchased the father’s ten acres for 1,000 dollars, of which he paid 100 dollars down, and obtained time on the balance. In the year 1851 the son died. His administrator obtained an order to sell, and sold, the entire eighty acres to make assets for the payment to the father of the balance of 900 dollars of the purchase-money. Afterwards the father sued the admin-, istrator for the 900 dollars.</p> <p>Held, that, as the deed to the son was made under the H. S. of 1843, there was no resulting trust in favor of the father.</p> <p>Held, also, that where a father buys and pays for land, and has the deed made to his child, the law infers that it is an advancement; but- this inference may be repelled by proof that the father did not intend it as such.</p> <p>Held, also, that, in this case, the conveyance to the son was not an advancement; but was made in payment of a debt, under a subsisting agreement that the father should hold the ten acres in his own right.</p> <p>Held, also, that, under the facts stated, the agreement was lawful, and the son was in equity bound by it to convey the ten acres to the father; and the father had a right to sell, and did sell, his equitable interest to the son.</p>

<p>Suit in t}ie Circuit Court for the recovery of lands. Answer, the statute of limitations. Reply, that while the plaintiff was an infant, defendant took possession without right, and that 20 yea¿rs have not elapsed since the plaintiff attainted full age. Demurrer to the reply sustained.</p> <p>Held, that the reply was good in substance, and that the demurrer should have been overruled.</p> <p>Held, also, that where a stranger enters into and occupies an infant’s lands without claim of right, as in this ease, the infant has a right to regard him as his guardian, or trustee; and that the plaintiff might, by amending his complaint, compel the defendant to account as such.</p>

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

<p>ERROR to tbe Switzerland Circuit'Court.</p>

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

<p>Suit upon a promissory note by the assignee against the maker. An - swer that the note was given for the consideration of a piece of land purchased upon the terms stated in a title-bond given at the time— viz.: that there should be paid for the land 2,000 dollars, for which promissory notes were executed; and that the purchaser should have a deed, &e., “upon payment of the purchase-money.” Further answer, that a deed had not been tendered, &c.; and, also, that the land, at the time of the execution of the bond, was in the adverse possession of a third person. The note sued upon was for 1,000 dollars, due on the 25th of December, 1855. -The record is silent as to the other note. Demurrer to the answer sustained, and judgment against the defendant.</p> <p>Held, that the paragraph setting up want of title in the obligor at the time of the execution of the bond, is no bar to the suit; that it would be enough that the obligor procured the title by the time he agreed to convey it; and that the answer should have shown that he could not do that.</p> <p>Held, also, that the execution of the deed and the payment of the last note for the purchase-money were dependent, concurrent acts, and that, to entitle the holder to sue at law upon the note he would be bound not only to tender a deed before commencing suit, but to tender it on the day the note fell due; but,</p> <p>Held, also, that the record in this case does not show that the note sued upon was given for the last installment of the purchase-money; and the defendant below being at fault for this defect, the judgment against him was right.</p> <p>Held, also, that where notes are given for the purchase-money of real estate, payable before the conveyance is to be made, they are obligations independent of the execution of the deed up to the time the deed is to be made; but if uncollected at that time, they are treated as dependent.</p>

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

<p>A notarial protest of a promissory note is admissible evidence under - the statute to show that due diligence has been used to fix the indorser.</p> <p>But where a bill was drawn, indorsed and. payable in Ohio, and the protest states that the notice was sent by mail, addressed to the indorser at New Albany, Indiana, there must be proof that the indorser resided there.</p>

<p>Section 2 of the swamp land act of 1853, does not authorize sales by private entry before the lands have been offered at public sale.</p> <p>This section was designed to settle the construction of sections 5 and 6 of the statute of 1852 regulating the sale of swamp lands, relative to the number of acres to be included in subdivisions sold at private sale.</p>

<p>Whenever in a suit in the Common Pleas Court, the title to real estate comes in question, the jurisdiction fails, and the cause must be dismissed.</p> <p>But judgment may be rendered for the costs.</p>

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

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

<p>The courts will not judicially notice the contents of the legislative journals: their judicial knowledge does not extend to the history of statutes on their passage through the legislature.</p> <p>The facts in relation • to the passage of an act, would, if formally presented, be a proper'subject of judicial inquiry and determination.</p> <p>Quaere, are the legislative journals’ records kept in obedience to the constitution?</p> <p>If so, it seems that when a party claiming any right or defense growing out of the action of the assembly, brings the parts of the journal relied upon to the judicial knowledge of the Court, they will be inspected like other records, and the Court will determine whether the legislative action they record, on the bill in question, is in accordance with the constitution.</p> <p>Suppose a bill pass the House of Representatives by a vote of fifty-one yeas, and go to the Senate, where, by amendment, the House bill is stricken out from the enacting clause, and a new bill inserted. It passes the Senate by a vote of twenty-six yeas. The House, ninety members present, concur in the amendment of the Senate by a vote of forty-six yeas, without reading the amendment by sections on three several days: Quaere, which of these is in reality the final passage in the House, on which the yeas and nays must be called, and a majority of all the members elect must be found voting in the affirmative? Is the bill thus concurred in the same which the House first passed? And is such a proceeding in conformity to the constitution ?</p> <p>The courts will presume that the printed statutes published “by authority” were passed in the proper form, with the requisite solemnities, and in conformity with the constitution, until the contrary appears.</p> <p>The English doctrine that mil iiel record cannot be pleaded to a statute, does not apply in the United States.</p> <p>The transcript must show that matter assigned in the Supreme Court for error, was properly presented in the Court below, and adjudicated.</p>

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

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

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

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

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

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

<p>Suit on the record of a judgment rendered in the Commercial Court of Cincinnati, Ohio. Transcript offered in evidence and objected to on the ground that it was not properly certified. It was certified by the clerk of the .Court of Common Pleas of Hamilton county, Ohio, and bore the seal of that Court. The certificate states that it is a true transcript of the record of the proceedings and judgment had in the Commercial Court of Cincinnati, as the same appear among the records of said Court, then in the office of the certifying clerk, which said records, with the files of said Commercial Court, were transferred and delivered to the said Court of Common Pleas, in pursuance of the constitution, and the act entitled an act to provide for the transfer of the business of the Superior and Commercial Courts of Cincinnati, which passed and took effect January 27, 1853. To this is added the certificate of a judge of the Court of Common Pleas of Hamilton county, certifying in the usual form the official character of the clerk of that Court, that his attestation is in due form of law, and by the proper officer.</p> <p>Held, that the certificate of the judge is at least prima fade, if not conclusive, evidence that the clerk’s attestation is in due form of law, and by the proper officer.</p> <p>Held, also, that the certificate supplies to our courts the place of the laws of Ohio,</p> <p>Held, also, that it shows what faith and credit would be given to the clerk’s attestation and record if offered in evidence in some other court in Ohio, and our statute provides that'when so certified, they shall be entitled to equal credit here.</p> <p>The proceedings in this case were against Richard J. Gatling, except that the plea was in the name of Robert J. Gatling. The record shows that this plea was filed in a cause against Richard J. Gatling, and the judgment was against him. Held, that the misnomer in the plea was merely a clerical error.</p>

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

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

<p>The payment of a mortgage may he proved hy paroh</p> <p>The record of a mortgage receipted in the margin hy an agent of the mortgagee is not objectionable in evidence merely on the ground that the agent had no written power of attorney to enter satisfaction.</p> <p>The erroneous admission of cumulative evidence on a point already proved, cannot prejudice the case of the party in whose behalf it is admitted.</p>

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

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

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

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

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

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

<p>All the partners may be bound after tbe dissolution of the partnership, by a contract made by one partner, in the usual course of business, and in the name of the fix-m, with a person who contx-acted on the faith of the partnership, and had no notice of the dissolution.</p> <p>A loan of money by a customer of a firm, to be used by the firm in their business, is within the usual course of mercantile business.</p>

<p>If a party voluntarily abstain from claiming the -right of trial by jury in 'a given case, it may be judicially held that is_ waived.</p> <p>Hence the statute (2 R. S. 115) enacting that such act shall be regarded as a waiver, is valid.</p> <p>The whole of the act of 1853 entitled, “An act to provide compensation to the owners of animals killed or injured by the cars, locomotives or other carriages of any railroad company in this State,” is not void for inconsistency with its title. The immediate purpose of the act is expressed in the title; and the exception as to railroads that are fenced, is so properly connected with the sjibject-matter of the act designated in the title, as rightly to appear in it under the title.</p> <p>Nor is the act void simply because it is special.</p> <p>Tlie third section of the act is unconstitutional and void, so far as it inflicts a penalty for appealing and failing to reduce the judgment 20 per cent.</p> <p>The first section of the act is also void so far as it gives, as to amount, unlimited jurisdiction to justices of the peace.</p> <p>The legislature did not transcend its powers, or violate private right, in enacting that railroad companies shall fence their roads, or pay for the cattle they kill or injure.</p>

<p>APPEAL from the Marion Circuit Court.1</p>

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

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

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

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

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

<p>This case being grounded on the same statute, was determined in accordance with the decision in The Peru and Indianapolis Railroad Company v. Bradshaw, 6 Ind. R. 146.</p>

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

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

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

<p>A. sued B. on a promissory note for 200 dollars. Answer, that the note was given as part consideration for two pieces of land (describing them) which G, acting as A.’s agent, had sold and conveyed to the defendant by general warranty deed, for 500 dollars — -representing A.’s title to be perfect; that the defendant, confiding in C.’s statement, paid 300 dollars, and gave "said note for the balance; but that at no time hitherto had A. had good title to one of the pieces of land, valued at said sale at 200 dollars. Demurrer to the answer sustained.</p> <p>Held, that the defense to which the demurrer was sustained was pleaded as a total failure of consideration. \</p> <p>Held, also, that there could be no such failure unless there was a breach of some engagement in the deed.</p> <p>Held, also, that the answer should have recited the covenants in the deed and alleged a breach.</p>

<p>Debt by G. against S. upon, an award as follows: “ John Doe on the demise of W. M., J. S. and others v. J. G. Recovery in ejectment in the Vigo Circuit Court, &e. Suggestion on the record, and claim by defendant for improvements under the statute concerning occupying claimants. We, the undersigned, having, by the consent of J. G. of tlie one part, and J. S. of the other part, been appointed by, &c., in the case aforesaid, arbitrators to settle certain matters of difference in said case, &c., met and qualified, &c.; and the said G. and- S. being then before said arbitrators to submit, &c., said G. and 8. then and there, &e., consented that they should decide on the. rights and equities arising, out of the recovery, &c., without being governed by the statute,' &e., and that they should award, &c.; and said G. and 8. did then and there so submit, &e., and on the hearing of the evidence we award, &c. The defendant denied the submission as alleged, but admitted that the cause had been referred. A jury was called' and evidence given as follows: 1. The award;■ 2. J. F., one of the arbitrators, testified that after they had been some days in the investigation of the claim of O. M., one of the lessors in -the suit, against the same parties, said G. and & agreed before the arbitrators, as stated in the- award; that under that submission the award was made; and that all the other parties agreed to have their causes decided by the same rule; 3. 8. W. testifies to the same effect, adding that G. was present in person at the submission; that there was no agreement to change the terms of the reference made by the Court, other than this, that the arbitrators should not be-confined to the requisitions of the statute, &c. It was admitted that the award was filed March 12, 1819, among the papers in the case of Doe, &c.; that the recovery in said case was in the name of & and several others; that shortly after the award was made, the counsel for the plaintiff requested the defendant to pay it, and that he declined to do so. Demurrer to the evidence. Joinder in demurrer, whereupon the jury was discharged, and the cause submitted to the Court. Demurrer sustained.</p> <p>Held, that a reference had been made of a cause pending in Court pursuant to the statute; that that submission was unrevoked; that the parties to it consented to waive some of the rules of evidence and forms of proceeding before the arbitrators, which .they were competent to do; that the lessors in the ejectment suit other than 8. were mere nominal parties, having no interest in'the questions under the occupying claimant law; and that, therefore, there was an existing submission to the arbitrators.</p> <p>Held, also, that the party in whose favor the award was rendered, might bring an action of debt upon it rather than return it into the Court from which the cause was referred, for enforcement there.</p> <p>Held, also, that parties may make a binding submission of matters of difference between them by parol.</p> <p>0,n demurrer to the evidence, the Court is bound to do against the defendant all that the jury might reasonably have done. .</p>

<p>Attachment against a canal-boat. The master appeared at the trial before the justice; but did not give bond to release the boat. Judgment against the boat. The master appealed to the Circuit Court, giving the usual appeal-bond. In that Court the plaintiff moved to dismiss the appeal, because no bond had been given before the justice for the release of the boat, and the substitution of the master as defendant. Cross motion for leave to file the bond. The Court overruled the latter, and sustained the former motion' — dismissing the appeal.</p> <p>Held, that the boat may be released at once by a bond securing the debt.</p> <p>Held, also, that if the bond is not given, the case stands as an ordinary case of attachment.</p> <p>Held, also, that the property may be released by appeal — the appeal-bond being a security substituted for the property.</p> <p>Held, also, that the Circuit Court erred in dismissing the appeal.</p>

<p>property of the within John Marriine, and on the same day, with the assistance of Beverly Berry, ft disinterested householder, made an inventory and valuation of the same, which I have herewith returned, annexed to this writ, — being all the property of the said John Mar-nine, that I could find in my bailiwick,” Signed by the sheriff. At the October term the cause proceeded regularly to judgment. Foreign Attachment, Affidavit as follows: “State of Indiana, Daviess county, ss. Daviess Circuit Court, April term, 1848. Jeremiah Murphy, of the county of Vigo, and State aforesaid, being duly sworn Sftys that John Marnine, of the State of Ohio, is justly indebted to him ip. the sum pf 392 dollars, as follows, to-wit: In the sum of 160 dollars had and received by, the said John from the said Jeremiah, to enter land in Jndiana for him, the said Jeremiah, but which he, the ,said John, converted to his own use; also the sum of 117 dollars collected by (he said John for said affiant, &c.; also, the sum of 80 dollars paid, laid out, &e.; all of which sums, &c; and that the said MfiXllve is not a resident of Indiana, but of Ohio,” &c, A bond in the •penal sum of 780 dollars was filed with the affidavit. The record states that upon the filing of the affidavit and bond, a writ, &o,, issued, &e. The writ recited the affidavit and bond. At the April term, the plaintiff appeared, prqved publication for three successive weeks, and had the cause continued, The sheriff’s return to the writ was in these words: “On the 7tji day of March, A. D. 1848, I attached within my county the real estate described in the following inventory, as the</p> <p>Held, that it sufficiently appears that the bond was approved prior to the issuing of the writ.</p> <p>Held, also, that it sufficiently appears that the property attached was situate in Daviess county.</p> <p>Held, also, that the notice was sufficient under the statute of 1843.</p> <p>Held, also, that the statute of 1843 required but one continuance after proof of publication.</p> <p>Held, also, that it cannot be objected that the affidavit shows the plaintiff entitled to a larger sum than ho demands; but,</p> <p>Held, also, that the bond is invalid — it should have been in double the amount claimed in the affidavit; and</p> <p>Held, also, that it should have been shown that the attachment was levied in the presence of a disinterested and credible freeholder.</p> <p>Held, also, that proceedings in attachment, being ex parte, must be pursued strictly; and that the judgment in such cases will bo reversed for very slight departures from the statute.</p>

<p>Scire facias to obtain a ca. sa. upon a judgment, under the code of 1843. The affidavit charged the defendant, in the language of the statute, with having effects out of which, &e., and which he fraudulently concealed, &e. Pleas, inter alia, 1. That the defendant was a householder, &c., and the property was exempt from execution. Demurrer sustained. 2. That no writ of fi. fa. was issued against him; but that he was ready arid willing at the time of the rendition of the judgment, had ever since been, and still was, to surrender sufficient property to satify the judgment, &c. Demurrer to this plea sustained, and refusal to permit the defendant to prove the facts alleged in,it.</p> <p>Held, that the demurrer to the first plea was correctly sustained. It should have averred that the defendant was a resident householder. Held, also, that the rulings touching the second plea were erroneous.</p>

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

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

<p>To give a written instrument an effect different from what its language plainly imports, the proof must he clear.</p>

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

Chamberlain filed a complaint before a justice of the peace, against James Brooks, president of the New Albany and Salem Bailroad Companyfor the killing of a i j j. An j n eow valued at 40 dollars. . The summons was served on the conductor of a railroad train on said railroad by copy, and on the return day of the summons a judgment was rendered against James Brooks, president, &c., ior the amount claimed, by default, from which he appealed to the Circuit Court.

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

<p>Wheeler v. The State, ante, 113 affirmed; jHamilton \. The State, 3 Ind. R. 552, overruled as to the point of practice established in Wheeler v. The State.</p>

<p>Suit on a sheriff’s bond. Breach, levying on real estate when the execution-defendant, who is relator, had personal property subject to execution sufficient to pay the debt. Answer — 1. A general denial. 2. That the land was sold with the knowledge and consent of relator; that it was purchased for him by one B.; and that relator furnished the money. 3. That relator gave up the lands on execution. Reply, taking issue upon the second and third paragraphs. Trial by the Court. Binding against relator.</p> <p>Held, that there was no issue upon the second clause of section 444, 2 R, S. p. 136.</p> <p>Held, also, that if there was evidence tending to show that relator’s messuage was sold, it was irrelevant.</p> <p>The Supreme Court will not scrutinize closely questions upon the weight of evidence, like that made in this case under the third issue.</p>

<p>APPEAL from tbe Union Court of Common Pleas.</p>

<p>The amount stated in the conclusion of- the declaration or complaint, must be considered the limit of the plaintiff’s demand.</p> <p>A motion to dismiss cannot be sustained on the ground that the sums of money claimed in the several counts added together mate an amount to which the jurisdiction of the Court does not extend, if the amount claimed in the general conclusion is within the jurisdiction .</p> <p>Aliter, in the absence of such general conclusion.</p> <p>A non-resident may file his bond for costs in open Court, within such time as the Court shall deem reasonable; and such bond, though filed after verdict, is valid.</p>

<p>Assumpsit. The declaration contained three counts — 1. Upon a special contract for the sale of land. 2. That the defendant was indebted to the plaintiff 728 dollars, by virtue of an award made pursuant to a submission entered into between the parties, &e. 3. A common count for land sold. Issues made under the code of 1843. Trial under the code of 1852. The plaintiff proved the award and the execution of the submission under seal. He offered the submission in evidence. Objection sustained on the ground that, being a sealed instrument, it was not applicable to the form of action. He then moved to amend his declaration by striking out the word assumpsit. Overruled.</p> <p>Held, that the submission was not admissible under the old system of procedure.</p> <p>Held, also, that the amendment was not allowable under that system, because leave was not asked until after the commencement of the- trial. Held, also, that the code of 1852 does not apply to pleadings in a case in which the issues were formed and completed before it took effect, — and hence the declaration was not amendable under it; but,</p> <p>Held, also, that, as sealed instruments had been reduced to the level of unsealed, at the time of the trial, the submission was admissible without the amendment.</p>

<p>Indictment for assault and battery with intent to oommit murder. The following charge was given to the jury: “If the defendant fired into» the crowd in question, of which A., the prosecuting witness was one, with the deliberate intention, either formed at the time or previously, of killing and murdering some one of the crowd, and that A. received a portion of the shot and contents of said gun, and was wounded thereby, it will be sufficient to establish the assault and battery with the intent charged. And if the case is otherwise made out, it will be the duty of the jury to find the defendant guilty as charged in the indictment.” Held, that there was no error in this.</p> <p>If from the battery committed by the defendant, A. had died, the intent to murder him would have been inferred from the act of shooting into the crowd; and though death did not in this case result from the shooting, that act is as good evidence of the intent to murder, as if death had ensued.</p>

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

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

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

<p>A guardian appointed by a court while the minor is under fourteen years of age, cannot be removed at the instance of the minor when he attains that age, except for good cause shown.</p> <p>This necessarily implies notice to the guardian to appear in the proceeding and controvert the sufficiency or the truth of the causes shuyn.</p> <p>The five days’ notice under the -statute is essential.</p> <p>Any action of a court removing a guardian without notice or appearance is a nullity.</p>

<p>Awards by arbitrators should be regarded with respect, and not heedlessly set aside; for they are the decisions of persons chosen by the parties to decide their differences.</p> <p>The presumption is that an award is justified by ajl the evidence; and where it does not appear that all the evidence given to the arbitrators was before the court, it may be presumed that the court did not assume to, if indeed it could, look to the merits of the award.</p>

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

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

<p>Suit by G. against W. for mal-practice as a veterinary surgeon. The jury were instructed as follows: “If W. pretended to no skill as a farrier, or was not known to G. as such, but as a matter of friendship or otherwise, recommended the making of the puncture, and the same was assented to by 0., and the puncture was accordingly made, W. is not liable, even though the horse died in oonsequence of the puncture so made.” Held, that W. was a mandatary, and responsible as sucb for gross ignorance or gross negligence; and hence, the instruction was erroneous.</p> <p>The general rule in bailment is, that where the contract is of mutual benefit, as where work is done for hire, ordinary diligence is required.</p> <p>But a mandatary is held only to slight diligence, and is responsible only for a breach of orders, gross negligence or fraud.</p> <p>The diligence required is proportioned to the value of the property bailed, or the delicacy of the operation to be performed.</p> <p>Verdict in these words: “We the jury find for the plaintiff one cent, and costs to the defendant.” Subsequently one of the jury filed an affidavit stating in substance that these words did not fully express the meaning of the verdict — the jury intending that the defendant should pay costs. On this affidavit the plaintiff moved for a new trial. Motion overruled. •</p> <p>Held, that the verdict is not ambiguous; that the words “costs to the defendant,” taken in connection with the context, mean that the defendant recover costs.</p> <p>Held, also, that the Court properly regarded these words as surplusage; and that the judgment for one cent damages and a like sum in costs, and that the defendant recover as to the residue of the costs, was correct.</p> <p>Held, also, that the plaintiff could recover no more costs than damages, and the verdict being one cent, the law, and not the jury, determined the question of costs.</p> <p>Held, also, that the affidavit of the juror could not be heard to impeach his own verdict.</p>

<p>Writ of mandate against a canal company, commanding them to rebuild a bridge, or show cause, &e. The affidavit upon which the writ was issued, stated that when the State constructed the canal, there was, and at all times since has been, a public highway of the State, crossing W. river at the place occupied by the pool made by a feeder-dam; that before the erection of the dam there was a ford in said river at that place, by which travelers could and did pass the river, except when it was high; that by the erection of the dam, the ford was rendered impassable, by reason of which the State erected a public bridge across the pool; that said bridge was maintained by the State on said highway until she transferred the canal with its appurtenances to the company, whose duty it is still to maintain the same; that in December, 1853, the bridge was carried away by a flood, and that the company, not regarding their duty, &c., have wholly failed, &e., to rebuild the same, &c. The bill of exceptions states that the company appeared and moved to dismiss the suit on the ground that their principal office and place of business is in a county over which the Court has not jurisdiction; that the motion was resisted by the plaintiff, but sustained by the Court.</p> <p>Held, that as the plaintiff failed in the Court below to state the grounds upon which he resisted the motion to dismiss, and the record being silent on the subject, it must be presumed that there were before the Court facts sufficient to justify its action under the statute; but,</p> <p>Held, also, that this ease is not within that class of actions which must be instituted in the county in which the subject of the action, or Some part of it arose; nor does the act of 1852, prescribing the manner of proceeding against canal companies for failure to rebuild or repair bridges, apply to it.</p> <p>A defect of jurisdiction is not waived by the defendant’s appearance to the action: the suit must be dismissed whenever, in its progress, such ■defect appears.</p>

<p>Bill against widows and minor lieirs to foreclose a mortgage given to secure the payment of promissory notes for the purchase-money. The record shows that the infants appeared by guardian ad litem, and an- . swered in the usual manner; and that the cause was submitted on the bill, exhibits, and oral testimony as to the execution of the mortgage. Decree of foreclosure. It is not shown that the notes were produced, or their execution, or even their existence proved on the trial. There is no allegation of their execution in the bill; but they are described in the mortgage.</p> <p>Held, that it was not essential that the execution of the notes should be stated in the bill; for the mortgagors would be estopped from denying it, and the heirs are bound by the same estoppel.</p> <p>Held, also, that, the action being upon the mortgage, it is well sustained, prima facie, by proof of the execution of that instrument.</p> <p>Held, also, that the Court below, the defendants being infants, might, in the exercise of a discretionary power, have withheld its decree until the notes were produced, or their absence accounted for j but the non-exercise of such power is no ground for reversal.</p>

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

<p>Exemption» from taxation are to be strictly construed.</p> <p>The second specification of section 6 of the assessment and collection law of 1852, applies only to public property, and does not exempt from taxation property devoted to the use of a private school.</p> <p>•A .private boarding-school is not a literary institution within, the meaning of the fifth specification of the same section.</p> <p>The fact that such an establishment is or is not incorporated, does not determine the question of its liability to or exemption from taxation, under the statute.</p> <p>To be exempt, it must have the qualities specified in the seventh subdivision of the same section.</p>

<p>A. sued B. and C. in the Court of Common Pleas, alleging that he held a judgment against D. which was a lien on certain real estate belonging to D.; that B. also had a judgment against D. which was a prior lien; that B. sued out an execution, and placed it in the hands of C. the sheriff, who by fraud and collusion with B. and without the knowledge of the plaintiff, sold the real estate without advertising it according to law, and before ten o’clock on the day of sale, and that B. became the purchaser for a sum less than his judgment; that the plaintiff and others were ready to bid, and would have given more for the land than the lien of B. Prayei’, that the sale be set aside as fraudulent. Demurrer, assigning for cause want of jurisdiction of the subject-matter, overruled; answer making an issue; and judgment that the sale be set aside. Held, that the title to real estate being directly in issue, the Court had no jurisdiction, and its judgment cannot be sustained.</p>

<p>An indictment cannot be quashed under the statute of 1852 for the rear-son that the time when the offense is stated to have been committed is given in figures instead of words.</p> <p>At common law it was necessary to state jn an indictment a time when the offense was committed; but, in general, a variance in proof from the time stated was immaterial.</p> <p>The statute of 1852 does not change the common law rule: it does not dispense with the statement of a time, but the time stated need not be the precise time proved.</p> <p>In this case the indictment charged that the offense was committed “ on oi* about the 30th day of December." Held, that the words “or about” were immaterial, and mere surplusage, making no difference in the proof required, nor working any prejudice to the rights of the defendant. 1</p> <p>Semble, that it was never necessary that the allegation should be more certain as to time than the proof.</p> <p>In describing a counterfeit bank note, it is not necessary to set out the ornamental devices, but only the substantial parts of the instrument, which would, if genuine, make it a valid note.</p>

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

<p>A new trial will not be granted for the reason 'that the verdict is alleged to be contrary to law and evidence, except in very strong cases.</p> <p>An aetión upon an undertaking in the nature of replevin bail, to return the property in controversy, if such return should be adjudged, pay costs, &c., is an action for a money demand on contract.</p> <p>If tbe recovery in such cases be less than 50 dollars, the plaintiff must pay costs.</p> <p>A verdict in accordance with the weight of evidence, and with justice, will not be disturbed on account of erroneous instructions to the jury.</p>

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

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

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

<p>The defense of usury is personal to the borrower and his heirs or representatives.</p> <p>A vendee óf real estate who purchased subject to a mortgage tainted with usury, cannot avail himself of that defense against a bill for foreclosure.</p> <p>Semble, that such vendee might set up the usury, with the consent of the party who made the usurious contract, and who was to suffer by it.</p> <p>And if such party to a usurious contract be made a party to the action, he may set up usury as a ground of equitable relief to himself.</p>

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

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

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

<p>In an action brought by A. against B., for services rendered by him as attorney at law, in a case in which B. and 'thirteen others were defendants, B. offered to prove that A. had been paid by one of his thirteen co-defendants 40 dollars, and 12 dollars by another, for services as ■ attorney in that cause. The Court refused to admit the evidence. The jury found specially that the services sued for were rendered for B. alone.</p> <p>Held, That the evidence so excluded was irrelevant; and that, in the absence of anything from which a different, inference might be drawn, such payments must be presumed to have been made on the separate liability of those who made them.</p>

<p>A note, and mortgage to secure the same, if made upon the consideration of natural love and affection, will be supported, where there are no rights of creditors, or other third persons, intervening to disturb the rights of the parties thereto.</p> <p>The recitals in a mortgage, if made under the direction of the owner of the mortgaged premises by one who is not the owner thereof, will operate as an estoppel in pais upon the owner, unless this fact be modified by other circumstances.</p> <p>Any act or words evincing the grantor’s intention to deliver a deed, as leaving it at the proper office to be recorded, is prima facie a delivery.</p> <p>It is not competent for one who has directed another to execute and deliver a mortgage upon his own property to a third person, to set up against the mortgage a contemporaneous understanding between himself and the mortgagor inconsistent with the terms of the mortgage.</p> <p>The commencement of a suit for the recovery and enforcement of a note and mortgage, by the mortgagee in this case, is sufficient evidence of her acceptance thereof.</p> <p>A party cannot revoke his act after others have acquired vested rights under it.</p> <p>A. directs his son B. to mortgage a portion of his own lands to his infant daughter, 0., to secure the payment to her of a sum of money, promising to convey the same to B. at a subsequent time. The mortgage was executed and delivered according to directions, the only consideration for A.’s promise being his natural love and affection for his children. He subsequently changed his mind before conveying to B. the lands mortgaged to 0., and without authority from G. entered the' mortgage satisfied upon the record: Held, that upon suit brought by C. and I)., her husband, again-st A. and B., to set aside such entry of satisfaction as fraudulent, and foreclose; the mortgage, the plaintiffs were entitled to the relief sought. Held, also, that a resulting trust in favor of A. could not arise, in such case, upon any pretext whatever.</p>

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

<p>Where an equitable case is presented, a mistake in the partition of real estate must be rectified by the court upon some just basis.</p> <p>In a case of mutual mistake which has been entailed on innocent purchasers, the court will not go behind the partition if it can be avoided.</p> <p>A report of commissioners for partition is sufficiently certain, if it is- • capable of being reduced to a certainty by survey.</p> <p>Where such is the case, if heirs fail to have a survey made, before making entry and improvements, they must bear the consequences of mistake.</p> <p>The fact that heirs carelessly took possession of land to which under the partition they had no title, would not affect the rights of parties, unless continued for twenty years.</p> <p>Parties will not be allowed to take advantage of their ignorance of facts which they might and should have known.</p>

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

Motion in the Common Pleas to quash an information. The record does not show any final determination of the cause; but only the motion, the affidavits on which it was based, and the bill of exceptions showing the motion overruled.

<p>^1® ^aUnS ou*' 05^ al1 a^iti°n to a city by tlie owner of adjacent lands. the recording of a plat thereof; and the sale of lots with reference to such plat, operate as a dedication to public use, of all streets, alleys, and other grounds, clearly designed to be so appropriated.</p> <p>The designation upon such plat, of a lot or space, as a site for a church, seminary, market, or common, operates as a dedication of -the same-to the public, for such purpose.</p> <p>The words, “public square,” have, in this State, acquired a definite legal meaning; and when written or printed in a proper place on the plat of a town designed for a county seat, the place so designated is set apart as the site of the court-house, and other county buildings.</p> <p>The owner of lands may lay them off in town lots and publish a map thereof, without being concluded to any extent; but so soon as he sells lots with reference to such map, other rights intervene, and the dedi-* cation of all grounds designated upon such map for public use, then becomes effectual.</p> <p>A single declaration, made by the owner of land, that he intends to dedicate any portion of it to public use, unconnected with some act in furtherance of that intention, will not amount to a dedication; much less will such declaration amount to a dedication when accompanied, or immediately followed, by an act wholly inconsistent therewith.</p> <p>If a single act of the owner of land be relied on to establish a dedication of the same to the use of the public, its character must be so unequivocal as to require neither lapse of time nor user by the public, to aid the presumption of dedication, arising from such act.</p> <p>The facts that an administrator makes and records a town plat of lands belonging to his decedent, designating thereon a given square, as “ Spencer Squareand that he subsequently sells lots by such plat, do not of themselves operate as a dedication of that square to the public.</p> <p>Mere public reputation for any length of time will not, unless connected with some act of the owner of lands, evincing his intention to dedicate the same, or with the use, control, or occupancy of, the same by the public, operate as a dedication.</p> <p>Adverse possession is never proved by mere reputation.</p> <p>Where the evidence is conflicting, an appellate court will not disturb the verdict of a jury.</p> <p>The giving of an erroneous charge where there was no evidence on which to predicate it, and where the verdict is right upon the evidence before the jury, cannot avail either party on appeal as error.</p>

<p>A. B. and C. granted to E. the right to use and improve a mill-dam and . race, with certain appurtenant privileges, stipulating as a condition to such grant, that E. should build and put into operation a grist mill, _ and that if he, or they who might hold under him, should fail to put such mill into operation, or should vacate the same, or fail to repair it when necessai’y, for a great length of time, then the privileges granted should revert to the grantors. The instrument by which this grant was made refers to a dam and race already existing on the premises, (the user of which is granted to E.) and to a deed executed concurrently with the instrument, whereby O. conveyfed to E. the fee simple of 80 acres of land on which was situated a saw-mill, which, it seems, had been run by means of the last said dam and race.</p> <p>Held, that the heirs of E. should be considered as holding under him, within the intention of the parties.</p> <p>Held, also, that the conveyance by O. of the saw-mill and site carried with it the use of the head of water necessary to its enjoyment, with all incidents and appurtenances, so far as the right to convey the same existed in the grantor.</p> <p>Held, also, that a fee simple may be created by words of reference to a deed conveying a fee simple, without the use of the word “heirs,” where the intention is clear.</p> <p>Held, also, that the reference in the instrument by which the water privileges were granted, to the, deed conveying a fee simple title to the mill and site, and to the objects for which that conveyance was made, enlarged the grant to a fee simple.</p>

<p>A party is estopped to deny the existence of a corporation at the time he contracted with it as such, if the corporation could constitutionally exist.</p> <p>But he may show that it has since ceased to exist.</p> <p>A pleading averring such cessation of corporate powers, must show how they came to a termination.</p> <p>It cannot be shown, in defense of the suit of a corporation, that it has forfeited its corporate rights by misuser or non-user.</p> <p>Advantage can be taken of such forfeiture only on process on behalf of the State, instituted directly against the corporation for the purpose of avoiding its charter.</p> <p>Individuals cannot avail themselves of it in collateral suits, until it be judicially declared.</p> <p>A plea or answer to a suit of a corporation, showing facts upon which, in a direct proceeding, its corporate powers might be declared at an end, is, therefore, as a general rule, bad.</p> <p>If by the charter or by contract, a condition precedent exists to the right to exercise corporate powers, that condition must be performed or waived by the opposite party before such right may be exercised.</p> <p>A bill of exceptions signed and filed by leave of the court below, at a term subsequent to that at which'the cause was tried, without objection by counsel for the adverse party, who signed an agreement as to what should be embraced irf it, will not be rejected by this Court, especially after submission upon the record as made up, without any motion to strike out the bill.</p>

<p>APPEAL from the Marion Court of Common Pleas.</p> <p>The appellees were plaintiffs, and the appellants defendants, in the Court below.</p>

<p>The reversal of a judgment carries costs in favor of the party obtaining it, back to the error of the court below upon which it is based.</p> <p>In this case when formerly before this Court, the reversal extended back through the trial below, to the issue tried. Held, that the appellee should be taxed with the costs back to that point.</p>

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

<p>A counter-claim, as defined by our statute, is any matter arising out of, or connected with, the cause of action, -^hich might be the subject of an action in favor of the defendant, or which would tend to reduce the plaintiff’s claim or demand for damages.</p> <p>In construing a statute, effect is to be given to every part, and it is not to be presumed that words have been used which were intended to import nothing.</p> <p>Our statutory definitions of sett-off and counter-claim differ materially: the terms are not used synonymously; nor is is either included in the Qther.</p> <p>A set-off being a separate and independent indebtedness, could not be had in view, in the transaction out of which the cause of action may have arisen, and it is not, therefore, within the definition of counter-claim.</p> <p>Trespasses cannot be made to compensate each other by any form of pleading.</p> <p>The fact that one trespass may be consequent upon another, does not so connect them that they may be blended"in the same-action.</p> <p>Quce-re, whether a counter-claim can arise in any case unconnected with contract.</p>

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

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

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

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

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

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

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

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

<p>Indictment for grand larceny. On the last day of the term the jury reported that they could not agree, and the Court discharged them. Held, that this was equivalent to a verdict of acquittal.</p> <p>A cause which has not progressed to final judgment, is not appealable.</p>

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

<p>A motion for a continuance is addressed to the discretion of the Court, and unless a strong case is presented, this Court will not revise a decision on the subject.</p> <p>Sickness does not excuse lack of diligence in procuring testimony, unless it be shown that there was not time between the service of process and the commencement of the illness, to enable the party to procure the testimony.</p> <p>' Qucsre, whether sickness will, in any case, excuse lack of diligence, unless it be such as to disable the party from employing an agent.</p> <p>The distance and facilities of travel between the party’s residence and that of the proposed witness, may be considered in determining the validity of such excuse. .</p>

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

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

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

<p>Complaint for diTorce and alimony. Causes alleged, habitual drunkenness, cruel treatment, and neglect to provide. Allegation that defendant owned eighty acres of land in Miami county, worth 2,000 dollars; that he had no personal property, except what plaintiff brought to him at their marriage; that plaintiff owned forty acres of land in her own right; that there was no issue of the marriage; that plaintiff had one child by a former husband; that defendant had no children. Prayer for a divorce, for the personal property, for plaintiff’s real estate, for one-third of defendant’s land, or alimony in lieu of it, and for general relief. Defendant was defaulted. Decree for divorce on account of the misconduct of the defendant, and that he pay as alimony 850 dollars — 200 dollars within six months, 200 dollars within 18 months, and 450 dollars within three years, if surety should be given by the defendant within thirty days — if not, execution to issue for the whole amount; and until payment or surety given, defendant was enjoined from selling his land in Miami county.</p> <p>Held, that the decree, though conditional as to the time of payment, is authorised by statute.</p> <p>Held, also, that the Court should have specified the nature of the security to be taken, and provided for its approval.</p> <p>Held, also, that the Court had power to grant the injunction, though the land lay in another county, but should not have granted it in this case, because it was not prayed.'</p> <p>Held, also, that the amount of the decree for alimony was extravagant, and unjust under the-statute.</p>

<p>Indictment as follows: In the Decatur Circuit Court, at the April term, 1856. The grand jury, &c., upon their oath charge that J. S. and S. H. on, &e., at, &c., did feloniously steal, take, lead, and drive away one strawberry-roan mare of the value of 120 dollars, and one dapple-gray horse of the value of 400 dollars, then and there being found the personal chattels of W. M.— W. P, prosecuting attorney. Held, good on motion to quash.</p> <p>A motion for change of venue is addressed to the discretion of the court.</p> <p>An affidavit for a continuance to obtain the testimony of an absent witness, contained all the necessary allegations; but it stated that the witness wanted was somewhere in Tennessee, affiant did not know in wliat county, and that affiant had been in jail two months awaiting the term at which he would be arraigned, and yet it did not appear that he or his counsel had made any inquiry as to the whereabouts-of the desired witness, nor does he furnish any excuse for the failure.</p> <p>Held, that the affidavit does not show sufficient probability of obtaining the testimony.</p> <p>Held, also, that it does not show sufficient diligence.</p> <p>The Court instructed the jury as follows: “If the property stolen, or a portion of it, was found in the possession of the defendant in a short time after the larceny was perpetrated, it would be your duty to find the defendant guilty, unless he satisfied you from the evidence that he came by the horse honestly.”</p> <p>Held, that the instruction was incorrect; that it should have directed the jury that they might, instead of that they should find defendant guilty.</p> <p>Held, also, that defendant was not bound to satisfy the jury that he came honestly by the property, but only to raise a reasonable doubt that he came by it as charged.</p> <p>Held, also, that the error was no'cause of reversal, because — 1. The Court, in another instruction, directed the jury correctly on the subject of reasonable doubts. 2. As applied to the facts of the case, the erroneous instruction could not have prejudiced the defendant.</p> <p>Further instruction as follows: If you believe from the evidence that the defendant and J. S. were together the day before the larceny was committed, and kept together up to 8 o’clock the night the horses were stolen, you have a right to infer that the larceny was committed by them jointly. Held, that the instruction was erroneous.</p> <p>Where the indictment charges two or more with a joint offense, one of 'them alone may be found guilty; but they cannot be separately found guilty of separate parts of the charge.</p> <p>The Court may communicate with the jury during their deliberations to withdraw erroneous instructions and give additional ones; but where erroneous instructions are given in writing and taken by the jury to their room, the court cannot withdraw them through the bailiff, after adjournment for the day, and in the absence of the parties.</p>

<p>The account of a county recorder for indexing the records of deeds and mortgages is not uncertain for want of the recorder’s signature.</p> <p>The rules of pleading will not be applied to a claim filed before county commissioners for an allowance.</p> <p>In this case, the commissioners made an order refusing to pay the recorder's claim for making such index. The recorder appealed to the Circuit Court. The commissioners obtained leave to file an answer. No reply. Held, that no reply was necessary; that the answer was not required by the rules of civil procedure; and that the facts contained in it were not, though uncontroverted, to be taken as true.</p> <p>The commissioners are not bound by any fixed rule of computation in determining the recorder’s compensation for making such index; and on appeal, the jury, acting under the same statutory requirement, arc equally unrestricted.</p> <p>The court cannot instruct the jury in such case, that three figures shall be taken as one word, or otherwise fix a standard of computation.</p> <p>A jury cannot be required to‘answer special interrogatories, except upon the condition that they elect to return a general verdict.</p> <p>Where a special finding does not conflict with the general verdict, the latter will stand.</p>

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

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

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

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

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

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

Complaint for surety of the peace made by Tilton against Conklin. Jury trial before the justice, and verdict sustaining the complaint; whereupon Conklin was recognized to the Common Pleas. In that Court, the defendant moved to quash for want of a sufficient affidavit. This motion was overruled, and exception taken. Trial by the Court, and Conklin ordered to give bail in tlje sum of 200 dollars. Conklin appeals, relying solely on the refusal of the Court to quash, &c.

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

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

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

<p>A deposition taken in a foreign state will be suppressed, if it appear that no commission was issued by the clerk of the court, pursuant to section 260 of the civil procedure act, authorizing it to be taken.</p> <p>An objection not raised in the court below, wilhnot be noticed by this Court, on appeal.</p>

<p>The provision of the statute that when a change of venue is directed the papers shall he transmitted forthwith, &c., means that they shall be transmitted as soon as it can reasonably be done.</p> <p>But the costs must be paid by the party applying for the change, before the papers are sent.</p> <p>If, therefore, a party obtaining an order for a change of venue fail to pay the costs within a reasonable time, he loses the benefit of the order; it ceases to operate after the expiration of such time; and the cause remains pending, as if no such order had been made.</p> <p>Thus, at the October term, 1853, the Decatur Circuit Court made an order for a change of venue to the Rush Circuit Court. The costs were not paid, nor the papers transmitted till the March term, 1854, of the Rush Court. At its ensuing April term, the Decatur Court ordered the clerk of the Rush Court to return the papery, and that being done, tried the cause.</p> <p>Meld, that there was no error in this.</p> <p>A will must be admitted to probate before it can be read in evidence.</p>

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

<p>Tlie appellant in this case sued the appellees for certain work done in the construction of their road;, hut it was proved on the trial that the work was not done for the company, hut for other parties. There was no evidence of any work done for the company. Judgment against the plaintiff. Held, on appeal, that no ground for reversal appears.</p>

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

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

<p>ON PETITION for a Rehearing (1).</p>

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

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

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

<p>A sheriff holds till his successor is elected and qualified.</p> <p>Where a sheriff’s official bond is conditioned for the performance of the duties of the office till a successor is elected and qualified, the liability of his sureties continues till that event.</p> <p>Quaere, whether it would not continue without such condition.</p>

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

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

<p>A request for a speedy decision of a cause in this Court is regarded, as impropei.</p> <p>The statute determining the order in which causes aré to stand for trial, in this Court, and the rule of the Court fixing the order in which they are to he considered, cannot with propriety he relaxed.</p> <p>Such request should, at least, first secure the consent of the bar of this Court.</p> <p>The rulings on the other points raised in this case have been so frequently repeated heretofore, and even at the present terra, that it cannot be necessary to note them here.</p>

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

<p>An affidavit for a change of venue, assigning for cause that the judge is prejudiced, is sufficient.</p> <p>But a refusal to grant a change for that reason, is not available in error unless exception be taken at the time the decision is made.</p> <p>Where the evidence is not in the record, this Court cannot ascertain the number of witnesses, with a view to determine whether the costs have been properly taxed.</p> <p>The overruling a motion for a new trial cannot be assigned for error, unless the evidence be. in the record.</p> <p>An action under the liquor law of 1853, instituted on the first of June, 1855, is not affected by any provision of the liquor law of 1855.</p> <p>Repealing and saving clauses in an enactment of the legislature do not operate earlier than the rest of the act, though expressed in the present tense.</p> <p>Exception canpot be taken in gross to several rulings, but must be taken to each at the time it is made.</p> <p>Where the trial was on the 20th of October, and the bill of exceptions .was presented and signed on the 27th, and its language, after stating several rulings of tho Court, was, “To which said acts of the Court, the defendant objects and excepts,” &c., — held, that it is not shown tha t the exceptions were taken at the proper time; that the language, “objects and excepts,” relates to the time of the presentment and signing of the bill, and not to the time of the trial.</p> <p>The intention of the statute providing that exceptions shall be taken at the time, &c., was to prevent error, by giving the lower court a chance to review and correct its rulings.</p>

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

<p>APPEAL from tbe Grant Court of Common Pleas.</p>

<p>Where several persons are jointly charged, but separately tried, they are competent witnesses for each other*, if they consent to testify.</p> <p>On trial for assault and 'battery, the defendant may give in evidence a transcript- of a justice of the peace setting forth a conviction for an assault and battery upon the same party; but unless the transactions be identified, it will be but .a lint in the chain of evidence going to show a former conviction.</p>

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

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

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

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

<p>Section 3G of the act of 1852 providing for the organization of county boards, &c., provides that an appeal from the decision of a hoard of commissioners shall be tried as an original cause, but not that it shall be tried in the same manner as by the commissioners; hence it may be tried by jury.</p> <p>On appeal from a decision of a county board, a certificate of a township clerk, that the claim (for medical services rendered to a pauper) had been presented to the township board of trustees, acting as overseers of the poor, and by them approved, was admitted in evidence in the Circuit Court. It did not purport to he a copy of any record or order of the hoard of trustees.</p> <p>Held, that the certificate was admissible to show that the services had been rendered at the instance of at least one member of the hoard, and not voluntarily; but it was not evidence for any other purpose, and as it misled the jury, a new trial should have been granted.</p> <p>Held, also, that the civil township is a corporation represented by a board of trustees, who are bound to keep a true record of all their proceedings.</p> <p>Held, also, that a township hoard oan only speak by its record.</p> <p>A board of county commissioners cannot meet at any time other than the regular terms; and it can only transact business as a hoard.</p> <p>An order made by commissioners at any other time, unsupported by evidence of confirmation by the hoard when legally in session, is not valid, nor is it evidence of any action of the board.</p> <p>The county board may employ a physicia# for the prisoners and poor of one or more townships of a county.</p> <p>It is not shown that a certificate was obtained by fraud, if it appear that the maker knew its contents.</p>

<p>A distributee of a decedent’s estate, is a competent witness for the administrator in a suit against the latter to recover money claimed to be due from the estate.</p> <p>Where an agent acts for his principal in transactions with others, the act of the agent is, in contemplation of law, the act of the principal; but when an agent makes a charge against his principal, he cannot insist that that entry is the act of the principal.</p> <p>Transactions of principal and agent are ordinarily governed by the same rules of evidence that apply to transactions between other persons.</p>

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

<p>A promissory note given to a feme covert for money belonging to her before her marriage, and remaining her separate property afterwards, cannot, under the statutes of this State, be pleaded as a set-oif in a suit against her husband.</p>

<p>If the utmost a plaintiff can recover upon liis claim as stated, be within the jurisdiction, the court has jurisdiction of the cause.</p> <p>Where suit was brought in the Common Pleas upon a note drawn for more than 1,000 dollars, with credits reducing it to less than that sum, and a copy of the note and credits was made part of the complaint, — ■ held, that the Court had jurisdiction.</p> <p>The damages laid in the conclusion of a complaint, do not enlarge the claim.</p>

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

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

<p>A. and B. were prosecuted for nuisance. A. plead guilty. B. went to trial, on plea of not guilty, and was convicted. The Court taxed the costs to A. up to the severance. Held, that there was no error in this.</p>

<p>An'appeal from tlie order of a county board vacating a road, cannot be taken by a person who was not a party to the proceeding, unless he make himself a party by affidavit that he is interested or aggrieved by the decision.</p>

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

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

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

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

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

<p>A law which absolutely forbids the people of the State to manufacture and sell whisky, ale, porter and beer, for use as a beverage, or at all, except for the government, to be sold by it as a medicine, and absolutely prohibits the use of these articles as a beverage, is unconstitutional.</p> <p>It is an invasion by the government upon the faculties of industry possessed .by individuals, when it attempts to appropriate to itself any particular branches of industry, or any business which is not of a public, general character.</p> <p>There are certain absolute rights, and the right of property is among them, which, in all free governments, must of necessity be protected from legislative interference, irrespective of constitutional checks and guards.</p> <p>The power of the legislature to declare nuisances. '</p>