Volume 9 — Indiana Reports

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

<p>Under the statute of 1843, B. S. c. 42, art. I, a lien may be held for work done or materials furnished on a new building erected by a tenant on land of another.</p> <p>The latter clause of the second section of that article simply means that the tenant of a building shall not subject it to a lien for repairs, but that unless the contract for repairs be made with the owner, the statute does not apply.</p> <p>An averment in an answer that the plaintiff falsely and fraudulently represented a mechanic’s lien to be valid, is bad on demurrer.</p>

<p>Process served on Friday, the 22d day of June, 1855. Court commenced on Monclay, the second day of July, following. Held, that, excluding the first day, and including the last, the service was in time.</p> <p>The intervening Sundays are included in computing the ten days, except where Sunday is the last day.</p> <p>If a defect of parties be not tested by demurrer or answer, it is waived.</p>

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

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

<p>A. and B. owned a warehouse and lot, which they used in their partnership business. A. sold a half interest in the property to C., who took a deed in his own name, and became the partner of B. B. and C. fitted up the warehouse for manufacturing flour; and afterwards, B-, with, the consent of C., sold his half interest to D., who paid his individual funds, and took a deed in his own name. C. and D. shared the expense of completing the mill equally, and then carried on the business of manufacturing flour, in partnership. Partnership funds were used in paying for repairs, improvements, and protection. The partnership was dissolved, and a settlement showed D. indebted to C. 3,000 dollars. D. became insolvent, and made an assignment. His assignees sued for partition of the property, C., in his answer, claimed that the property was part of the capital stock of the firm, and that he had a lien upon the undivided half for the balance of 3,000 dollars. Edd, 1. That the property was chargeable in the same manner as if it had been paid for out of money belonging to the partnership. 2. That the character of partnership property was impressed upon1 it by the manner of its use for the purposes of the firm. 3. That it must be treated as personalty, and held subject to the lien.</p>

<p>The emergency clause in the act of June 14, 1852, regulating the remission of fines and forfeitures, declared the act to be in force from and after its being filed with the clerks of the Circuit Courts in their respective counties.</p> <p>Held, that the legislature intended the act to be brought into force as soon as it could be distributed to the several counties, and though there is no express direction to the secretary of state to distribute it, the emergency clause implies such a direction.</p> <p>Held, also, that the secretary of state is to be presumed to have done his duty, and hence, that the act was in force on the 20th day of December, 1852.</p> <p>The power of the governor, under the present constitution, to remit fines and forfeitures, is not absolute. It can only be exercised pursuant to legislative direction.</p>

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

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

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

<p>When one consideration, and no other, is expressed in a deed, parol evidence is admissible between parties and privies, in the absence of any allegation of fraud or mistake, to prove a different consideration, though the legal effect of the deed be thereby changed.</p> <p>Where the merits of a cause have been fairly tried and determined, the judgment will not be reversed, although error may have intervened.</p>

<p>Betting on a horse-race is betting on a game, within the meaning of section 2, 1 E. S. p. 305.</p>

<p>Section 44, of the act of May 14, 1852 (1 B. S. c. 27), regulating descents and the apportionment of estates, provided that the act should take effect August 1, 1852; but as it contained no emergency clause, and was not published at that time, it did not take effect until May 6, 1853.</p> <p>Section 16 of that act does not operate upon dower consummate, but simply substitutes a third in fee for dower inchoate, except where the rights of creditors intervene.</p> <p>The law in force at the dissolution of a marriage by death, is the measure of the rights of the survivor.</p> <p>Thus, where the husband died since May 6,1853, the widow — no rights of creditors intervening — takes one-third of his real estate in fee.</p> <p>The statute is not retrospective — death being the future event upon the occurrenco of which it takes effect; nor does it impair the obligation of contracts.</p> <p>Marriage is not simply a contract, but a public institution, not reserved by any constitutional provision, from legislative control; and all rights in property, growing out of the marriage relation, are alike subject to regulation by the legislative power.</p> <p>Thus, the legislature is competent to increase or diminish dower, or to substitute a larger estate for it, or even to abolish dower inchoate altogether.</p> <p>So, also, the legislature could, under the old constitution, grant divorces by direct enactment, and may under the new constitution, by general enactment, provide regulations by which the Courts may decree them, independent of the rules governing the rescission of contracts, and without regard to inchoate rights.</p> <p>It was not dower, but the purpose of dower — namely, the support of the widow — which the law favored; and the statute having substituted a third in feo for dower, the substitute must be regarded with the same favor by the Courts.</p>

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

<p>Suit by a township to recover possession of certain land. Answer, that on the 12th of November, 1841, Milton Jennings, school commissioner of Benton county, sold the land to one Abner Evans, who paid 50 dollars, one-fourth of the purchase-money, and received a certificate of purchase, which he assigned, &c., and which, after other assignments, was duly assigned to defendant, and under it he claims title. The answer then sets forth the following act: “An act to legalize the acts of the school commissioner of Benton county. Approved January 13, 1844. Section 1. Be it enacted, &c. That the sale of the following described lands, ***** made by Milton Jennings, then acting as school commissioner of the county of Benton, is hereby declared legal, and that said Abner Evans, purchaser of said lands, shall be entitled to all the benefits of said purchase, as if the said Jennings liad, at that time, been school commissioner of the county of Benton. Sec. 2. This act to take effect and be in force from and after its passage.” It is then averred that defendant had fully paid the interest on the unpaid purchase-money, annually, in advance, and that the last payment •was made March 3, 1856; that the advance payment of 50 dollars, and the interest for fourteen years on 150 dollars, the unpaid balance, had been paid over to the officers having charge of the school fund, and the interest thereon had been psed in the support of schools in the township, wherefore defendant claimed that the sale bad been ratified. Demurrer overruled. Reply, that the land was sold by the school commissioner without authority of law; that at the time of the sale, there were not fifteen resident, qualified voters in the congressional township; that no vote authorizing such sale wps reported to the school commissioner; that no division of the section into lots was made, nor no minimum price affixed. The ratification was also denied, generally. Demurrer sustained. The act of February 15,1841, was relied upon. Held, 1. That it was the intention of the legislature to legalize the sale to Evans, by curing all defects, whether found in the acts of the commissioner, or in his official tenure. 2. That the legislature had the power to do so.</p>

<p>tVIiere dogs belonging to several persons kill sheep together, each owner is liable only for the acts of his own dog.</p>

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

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

This was a suit on the bond of a liquor-seller, licensed under the law of 1853. The complaint was filed on the 23d of February, 1855. At the spring term a demurrer was filed to the complaint, which the Court overruled, and the defendant failed to except. The defendant answered— 1. That he did not give the bond. 2. Denying each and every allegation in the complaint.

<p>Action to recover possession of a horse. A. had sold the horse to B., and in exchange received two other horses. There was a fi.fa. out against B.’s property at the time of the exchange; but of this B. had no knowledge. Afterwards, B. made an assignment, including the horse, to his partner, C., for the benefit of creditors. He. delivered the horse to G., but received him back, and kept him at livery. A. sold the two horses received from B., to D., in whose hands they were taken on the fi. fa. and sold. A. made compensation to £>., and brought this suit against C. Terdict and judgment for the plaintiff. The application of the statute of frauds to the case, was not considered in the Court below. Held, 1. That the case is governed by the statute of frauds. 2. That the question was upon the bona fides of the assignment of the property to C. 3. That if there was not an actual, visible, continuous change of possession, the transaction was prima facie fraudulsnt. 4. That upon that point, and all others affecting the title of C., the question of fraudulent intent ivas for the jury.</p> <p>A pre-existing debt is a sufficient consideration to support an assignment, if' the assignment tras otherwise made in good faith.</p>

<p>A contract to convey or cause it to be done, is the same as a contract to convey, by the obligor, unless it is stipulated that the title is to be made by a third party.</p> <p>A vendor’s estate in land, contracted to be sold, but not conveyed, is subject to the lien of a judgment obtained against the vendor after the contract of sale, for the amount of the purchase-money unpaid.</p> <p>But the vendee may pay the balance in satisfaction, as far as it will go, of the judgment, and no inadequacy of price being shown, the lien will be discharged; and where this can be done without loss to the vendee, the incumbrance is no defense to a promissory note for purchase-money.</p> <p>Semble, that the obligee of a title-bond, in possession, cannot resist the payment of a promissory note for purchase-money, on breach of the condition of the bond, unless he offer to surrender the bond, give possession, and account for rents and profits.</p>

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

<p>In an action in relation to her separate property, a wife may, under the statute of 1852, sue her husband without procliein ami, except she be under 21 years of age.</p> <p>Sections 1, 2, 3, and 4, of chapter 38, Laws of 1853, p. 55, are unconstitutional and void.</p> <p>But section 5 of the act is valid.</p> <p>By the latter section, personal property of the wife held by her at the marriage, remains her separate property.</p>

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

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

<p>Suit to recover tie value of property taken and sold. Answer, that the goods were taken and sold by virtue of an execution, &c. Keply, that a previous execution issued upon the same judgment, by the same justice, had been levied upon the same property; that plaintiff had claimed it as exempt from execution, whereupon it was appraised and set off to him, according to the statute relative to householders, &e.; that the appraisement, schedule, &c., had been returned to the justice, &e.; that he was still a householder claiming the property; and that an execution was taken out, and the property fraudulently levied on and sold, during his temporary absence from home, &c. Held, sufficient on demurrer.</p> <p>It was argued that this reply was deficient in not averring that the judgment was entitled to the benefit of the law of 1852; but held, that, if that averment was necessary, it was made argumentatively, which was sufficient upon a general objection.</p> <p>Upon a question whether the plaintiff was a resident householder — the execution having been levied in his absence — held, that his declarations, at the time he left home, as to his intentions in leaving, might be given in evidence.</p> <p>As the record in this case does not purport to contain all the evidence, this Court cannot say that the admission in evidence of the former execution, levy, claim of exemption, appraisement, &c., was error.</p> <p>The evidence as to the plaintiff being a householder having been passed upon by the jury under proper instructions, this Court cannot say that the refusal of the Court below to set aside their finding was error.</p> <p>The defendant could not be permitted to prove that the plaintiff had other property than that levied upon, subject to execution.</p>

<p>The term “avocation,” as used in the act of 1855, “for the protection of the Sabbath,” embraces the selling of liquors.</p> <p>When it is lawful, at the time an information for a violation of that act is filed, for a person to make it his usual avocation to sell liquors, the act prohibits the exercise of that avocation on Sunday.</p> <p>A single act amounts to a violation of the law.</p> <p>Whether there might he more than one conviction for acts done on the same day, qucere.</p> <p>The law is constitutional.</p>

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

Suit by the assignee of a promissory note against the maker. Answer, failure of consideration. Reply, putting the cause at issue. Trial by jury. Verdict for the defendant. Motion for a new trial on the ground that the Court had not given the instructions to the jury, asked for by the plaintiff. The motion was overruled, and the plaintiff excepted. Judgment on the verdict.

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

<p>Suit by the assignee, on a promissory note made payable to the agent of an insurance company. Answer, 1. Failure of consideration; 2. Set-off. It was proved that the note was given for the premium upon a policy of insurance, which — the company having become insolvent — was cancelled by consent of parties, leaving a balance due the defendant for the unexpired term of the policy. It was not proved that the defendant had notice of the assignment of the note. Held, 1. That the insolvency of the company did not of itself work a failure of consideration to the amount of the balance. 2. 'That the balance was a valid set-off.</p> <p>The statement of the agent (not professing to have any knowledge upon the subject), that perhaps the note had been transferred, as it was the custom of the company to transfer its notes, falls far short of the notice required by statute.</p>

<p>A proceeding against a railroad company to assess damages, trader the statute, for land to he taken by the company, is authorized by art. 41, 2 R. S. p. 193, ss. 706 to 710.</p> <p>The proceedings subsequent to the return of the writ, in such cases, are prescribed by section 697, 2 R. S. p. 191.</p> <p>In this case, the company filed a pleading, assigning as a reason why the assessment should be set aside, “ that the writ of assessment does not contain a sufficient description of the real estate to be taken.” Held, that this, though deficient in form, was a demurrer to the writ.</p> <p>Semble, that the statute requires the pleadings to be addressed to the inquest of damages returned.</p> <p>But, perhaps, the inquest may be taken to include all the previous proceedings.</p> <p>The description alleged to be insufficient, sets out, in substance, the application, the congressional subdivisions of the land owned by the applicants, and proceeds thus — “ commencing at a stake in the west line of said tract of land, 9 chains and 21 links from the north-west comer of said lot.” The land on which the road was located is then described by courses and distances, making a parallelogram 80 feet wide, extending across the 80 acres.</p> <p>Held, sufficient on demurrer.</p> <p>No averment that the land had been taken by the company was necessary: the company could not take it till they had tendered compensation to the owners ; and the right of the owners to take those proceedings was perfected by the location of the road, without any other act of appropriation on the part of the company.</p> <p>Either party may institute proceedings to assess damages; and it is immaterial which takes the initiative.</p> <p>If the company intended to abandon the location, they should not have demurred, — they should have answered stating that fact; or if they had not made any such location, they should have traversed the statement to that effect, made in the application for the writ.</p> <p>It cannot be. objected that there was no complaint filed: the inquest, taken in connection with the application and writ, were sufficient to advise the company what was to be answered.</p> <p>There having been no issue of fact, no evidence could be introduced.</p>

<p>Equity will relieve against a mistake in a sealed instrument, upon parol evideuce; but only upon the clearest proof of the actual agreement and the mistake.</p> <p>Upon such evidence, equity will either rectify a mistake in a deed founded upon a consideration, according to the intention of the parties; or restrain as to the parts in which it has been framed contrary to, or has gone beyond, their intention in the original contract.</p> <p>A. sold part of a tract of land to B., giving a title-bond, and subsequently a deed. Afterwards he conveyed the residue to C. by deed. B.’s title-bond and C.’s deed recognized a common boundary between the tracts. But B.’s deed contained a description different from that in his title-bond, by which, on survey, it was found to convey part of the land embraced by the deed to C. B.’s deed was on record when C. purchased; but A., the grantor, and not B., was in possession. C. brings a bill for the reformation of B.’s deed.</p> <p>Held, 1. That the fact that C. is a stranger to the deed is, in this case entitled to little weight; but if that were a valid objection, he would still be entitled, if the facts otherwise warrant it, to a restraining order, as to so much of the deed as went beyond the intention of the parties.</p> <p>2. That the title-bond, and parol evidence, were admissible to explain the deed.</p>

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

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

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

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

<p>The act of Congress, approved February 27, 1841, confirming the selection of public lands made by this state in 1839, for the purpose of extending the Wabash and Erie Canal to Terrre Haute, did not embrace land previously pre-empted under the act of 1838; and proof of such pre-emption, and final payment, made in 1841, was a sufficient compliance with the pre-emption laws as revised and extended. ' .</p> <p>The word “cancelled” written over a land-office certificate of purchase, is not sufficient evidence of its cancellation.</p> <p>By section 3, c. 79, Laws of 1833, and sections 1, 8, and 9, R. S. 1843, c. 29, land-office certificates of final payment, were made evidence of legal title.</p>

<p>The signature of an umpire, to an award, is sufficient, with or without the signatures of the arbitrators.</p> <p>It is not necessary, nor perhaps proper in point pf form, that arbitrators, after calling in an umpire, should act in returning the award.</p> <p>Strictly speaking, the return of an umpire is an umpirage, rather than an award.</p> <p>Where several arbitrators are appointed, and one refuses to act, the award of the others will be valid.</p> <p>If ivro arbitrators disagree and call in an umpire, and either or both decline to act further, the umpirage will be valid, even though the umpire act upon the narration of the arbitrators, without hearing evidence.</p> <p>Under the old practice, if the defendant pleaded over, he waived his demurrer. Issues settled by a jury will not be disturbed on the general assignment, that the verdict is contrary to law and evidence, unless palpably wrong.</p>

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

At the April term of the Probate Court of Marion county, 1851, Thomas Iiewnon and Margaret, his wife, filed their petition in said Court for the partition of two tracts of land, one situated in Marion county, and the other in Hamilton county. Partition was decreed, and commissioners were appointed.

<p>A., B. and G. were partners, and dissolved their partnership. B. and G. brought suit against A., joining D. as co-defendant, alleging in their complaint that A. had got possession of the effects of the firm, and had assigned part of them to D., ostensibly to secure the payment of a pretended debt, evidenced by notes executed by A., but really, in pursuance of a conspiracy to cheat and defraud B. and G., as the firm was not indebted to D. Answer under oath, denying/the complaint. Issues were made by replies. The debt pretended to be due from the firm to D. was alleged to be for 6,000 dollars lent. A list of D.’s taxable property, as sworn to by himself, was admitted in evidence, to show that at the time at which the loan was alleged to have been made, he had not that amount of money. Held, that there was no error.</p> <p>Quaere, whether the defendants, in such case, could give evidence of general reputation as to D.’s pecuniary means.</p> <p>To diminish the effect of the tax-list, the defendants undertook to show that D. did not understand its contents -when he signed and swore to it. They offered to prove by the county treasurer that when D. paid his taxes, ho told the treasurer that there must be some mistake — that his taxes were more. The Court refused to admit the testimony. Held, that it was properly refused: the declaration was no part of the res gesta.</p> <p>The Court instructed the jury, in this case, that if they should find the whole or any part of D.’s claim against A., B. and C. unsustained by the evidence, they should find the assignment fraudulent, and the defendants responsible for the amount. Held, that this was error.</p> <p>The Court refused to instruct the jury that, if they found any part of the claim correct, and that the assignment was of notes, &c., as collateral security, and the amount of the security was not excessive, they might find the assignment bona fide, notwithstanding some part of D.’s claim had not been fully proved. Held, that the instruction might have been given, with this addition: — if the assignment was not otherwise fraudulent.</p> <p>A jury may be sent back to correct a defective verdict.</p>

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

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

Elizabeth Stafford filed her petition in the Morgan Circuit Court for a divorce, on the ground of abandonment and cruel treatment. At the May term, 1854, of that Court, the defendant, Benjamin Stafford, filed an answer denying the averments in the petition, and a cross-petition praying a divorce on the ground of refusal to cohabit, abandonment, ill treatment of his children, and the impossibility of a reconciliation.

<p>A bill of exchange drawn by one upon himself, as by a corporation upon its secretary, is in legal effect a promissory note, and may be the foundation ofan action.</p> <p>Such draft must, however, be presented for payment.</p> <p>A paragraph of an answer in the form of a plea of nil debet, puts the fact of presentment in issue, and requires it to be proved.</p> <p>A resolution adopted by the corporation that they would pay interest on the scrip issued by them, entitles the holder to interest on drafts drawn by the company upon its treasurer, after the adoption of the resolution, without a demand of payment.</p>

<p>On the 17th of February, 1854, A. and B. entered into a written agreement whereby the former sold the latter 1,000 bushels of corn, to be delivered in the cars at N., within three months from that date; for which B. was to pay 37 cents per bushel. Twenty-five dollars was paid down, and the balance, 345 dollars, was to be paid in fifteen days. B. failed to pay within the time; but on the 21st of March, 1854, he paid 300 dollars. On the 19th of April following, A., having 1,000 bushels of corn on hand, sent B. a letter, stating that the corn was ready for delivery, and would be sold, unless he made full payment within six days. It does not appear that B. received the letter. Accordingly, on the 29th of April, A. sold 600 bushels of the com, and about two weeks later the balance, at 30 cents per bushel. But on the 2d of May, fourteen days before the expiration of the time within which the corn g was to be delivered, B. tendered the balance of 45 dollars due on the contract, to A., who refused to receive it, &c. It was not shown that any part of the corn was ever at the place of delivery. B. recovered a judgment for the amount paid, and interest from the 2d of May.</p> <p>Held, on appeal, 1. That the facts show both parties to be in default; that neither could maintain an action on the agreement; and hence, that the contract was rescinded.</p> <p>2. That where a contract has been rescinded by the default of both parties, money paid in part performance may be recovered back with interest from the date of the rescission, in an action for money had and received.</p>

<p>The widow’s right of dower extends to and includes a house erected' on lands of her husband; and her claim is superior to a mechanic’s lien for which the property was sold under a decree against the husband to enforce the lien.</p>

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

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

This was an action upon a receipt given for wheat in store, commenced before a justice of the peace, and appealed to the Circuit Court. Plea, the general issue. Judgment for the plaintiff. There was no exception to any ruling of the Court. The defendant appeals.

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

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

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

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

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

<p>After judgment, the plaintiff cannot he allowed to suffer non-suit.</p>

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

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

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

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

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

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

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

<p>Where, under the R. S. of 1843, an execution on a judgment upon a contract under the appraisement laws, was levied on property selected by the execution-plaintiff, and the property was sold for two-thirds its appraised value, the execution-plaintiff purchasing and taking possession thereof: — Held, 1. That the sale was void for being for too small a sum. 2. That the execution-defendant might sue in damages for the value of the property, or might set up such value as a set-off in an action against him by the execution-plaintiff, if the execution-defendant was the principal in the debt sued on.</p>

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

<p>The sale of a chattel is complete if the parties consent to deposit it with their common agent, with instructions to deliver it to the vendee when he pays the price agreed upon.</p> <p>And where no time is fixed for such payment, it must be made within a reasonable time.</p>

<p>A. and B., severally, recovered judgments against G. at the same time. Simultaneous executions were levied, and G. executed a delivery-bond payable to the execution-plaintiffs jointly. The bond was forfeited, and suit brought upon it by both execution-plaintiffs. Demurrer to the complaint, assigning for cause that it did not state facts sufficient, &c., overruled. This ruling was assigned for error, and the appellant contended that the interests being several, though secured by a joint bond, action must be brought by each party to recover his separate interest.</p> <p>Held, 1. That the appellant could not raise that question, upon the cause of demurrer assigned. He should have assigned the sixth statutory cause.</p> <p>2. But the complaint would still have been good on demurrer: both the execution-plaintiffs were not only proper but necessary parties, and they were properly joined.</p> <p>Where the defendant answers, the Court may grant any relief consistent with the case made by the complaint.</p>

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

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

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

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

<p>Rule 28 — that points not made in the briefs of counsel will not be noticed by the Court — adhered to.</p> <p>Objections to the admission of testimony are not available in error, unless the grounds thereof were pointed out to the Court below.</p> <p>The words “the following was all the evidence offered,” are not sufficient under rule 30, to repel the presumption of other evidence, or to raise the presumption that all the evidence is in the record.</p>

<p>A conviction for assault and battery, upon regular proceedings before a justice of the peace, bars a prosecution for the same offense in the Common Pleas.</p>

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

<p>Complaint demurred to on the ground that it did not state facts sufficient, &e. Demurrer overruled, exception, and appeal. The only objection made in this Court is, that there was a defect of parties plaintiff. Held, that the objection could not be raised.</p>

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

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

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

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

<p>Unless the record is made up under section 347 of the practice act, it must show that a motion was made for a new trial, that motion being in all other cases essentially necessary to bring a question before this Court.</p> <p>There can be no exception to the finding and judgment of a Court.</p> <p>Though the bill of exceptions close with the technical words, “this was aE the evidence," &c., still if the biE show on its face that there was other evidence, the formal words are not sufficient.</p>

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

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

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

<p>Notice to the drawer, of protest for non-payment of a bill drawn within this state, but payable in another state, is a sufficient demand of payment, under chap. 77, sec. 10, 1 R. S. p. 379, to entitle the holder to 5 per cent, damages, under section 7 of the same chapter.</p> <p>As at common law, so under our statute (2 R. S. p. 37, s. 49), the plaintiff cannot recover a larger sum than he claims in his complaint.</p> <p>And where it was contended that the sum claimed was, by a clerical error, laid too small, held, that the complaint might have been amended, on motion, before the commencement of the trial, in the Court below; but the amendment could not he deemed to be made in this Court.</p> <p>It is only when the pleadings are defective in form, that they are deemed to be amended in the Supreme Court.</p> <p>In this case, judgment being taken by default, the defendant admitted an indebtedness to the amount claimed, and no more; and this Court cannot extend the effect of such admission so as to make the demand in the complaint correspond with the judgment for a larger sum.</p>

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

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

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

<p>A sheriff’s deputy, or bailiff, may empower another to do a particular act which he may himself do; and if the act be performed pursuant to the authority, it is valid.</p> <p>Thus an infant may be deputed to serve a particular writ, though he cannot act as a general deputy.</p> <p>So, a constable may depute another to serve a writ.</p> <p>Service upon a conductor of a railroad train is sufficient service upon the company, under the statute.</p> <p>The conductor is at least a special agent of the company.</p>

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

<p>Action by A. against B., to enjoin proceedings upon an execution. The complaint made this case: C. had obtained a judgment against A. and B. for a tort. An unpaid balance of that judgment, which is the part now sought to be collected, was bought with B’s money, for his benefit, and assigned to D., now the defendant’s intestate. It is contended that this was a payment of the balance, and that it was thus transferred to D. for the sole purpose of collecting it from A., the plaintiff. A. had already paid one-half of the judgment. The judgment was afterwards revived by B., the defendant in this case, as administrator of D., the assignee, and execution was levied upon real and personal property of B. The real property was sufficient to satisfy the demand. But before the day of sale, B., the plaintiff in that ' proceeding, for the purpose of avoiding the payment of the judgment, and to compel A. to pay it, directed the sheriff to abandon the levy and return the writ, which he did. The return shows the levy to have been upon real estate only; that the execution was superseded by a writ from this Court, and that as to B., it was returned by the plaintiff’s order. The order to abandon the levy alleged that the defendants, A. and B., had personal property subject to execution, and directed a levy upon the personal property of A. A motion was made to set aside this execution, which is still pending. Prayer for an injunction. Demurrer, assigning for cause, that the complaint did not state facts sufficient, &c., sustained. In this Court it is contended that as it is alleged that the judgment had been paid, the demurrer should have been overruled. Mdd, that the judgment having been re vived since such alleged payment; and there being no averment that the fact that the payment was made by D. with B.’s money, for his benefit, was unknown to the present plaintiff at the time the judgment was revived; and no other reason being given why the defense was not made in that action; the plaintiff is concluded by the judgment in that proceeding.</p> <p>As a general rule, there is no contribution amongst wrong-doers.</p> <p>The complaint in this case, not showing the nature of the tort for which the judgment was recovered, the case is governed by the general rule.</p> <p>If a party would avail himself of exceptions, he must show himself entitled to them, by proper averments.</p> <p>Where a demurrer has been properly sustained below, for a cause not properly assigned, the judgment will not be reversed.</p>

<p>There is no statute dispensing with the requisite of mutuality in cases of set-off ; nor is there any authorizing a defendant to ingraft upon an action brought by several plaintiffs, a separate demand against one of them.</p> <p>Action upon an account against-a decedent’s estate.with credits. Several matters were pleaded by way of set-off. The Court instructed the jury as follows: “If the defendant has failed to prove any of the off-sets in his answer, but resorts to the plaintiff’s claim to prove the credits that he is entitled to, then the jury will take the whole of the plaintiff’s claim as true, both debt and credit.” Held, that this was error.</p> <p>A claim filed against a decedent’s estate, if contested, is the claimant’s complaint, and is subject to the same rules of construction as other pleadings.</p> <p>If a party in a pleading admits a fact, the opposite party need not prove it; but all other matters in the same pleading, if put in issue,, as in this case, must be proved.</p>

<p>Action to quiet the title to land. One of the defendants disclaimed any interest in the land. The statute provides that in all civil actions, the party recovering judgment shall recover costs, except where a different provision is made by law. Held, that this case, except as to the party who disclaimed, is not within any statutory exception.</p> <p>There may be cases in which a judgment for the plaintiff may be withheld, unless he will accept it on the equitable condition of paying costs; but this is not such a case.</p>

<p>Where the evidence is conflicting, it is for the jury to weigh it, and, in such cases, if there is no other error in the record, this Court will not disturb the verdict.</p> <p>In an action of replevin commenced in the Circuit Court, the plea of property in a stranger, has always been good.</p> <p>In replevin commenced before a justice of tlie peace, and taken by appeal to the Circuit Court, the defendant might, by statute, under the former practice, prove property in himself or a stranger, without pleading it. i</p>

<p>Suit by the indorsee upon a promissory note for 65 dollars. The maker and the payee were both deceased. Answer, payment by the maker in his lifetime to the payee in his lifetime. The evidence showed money payments to the payee, amounting to from 75 to 90 dollars. Upon what indebtedness the payments were made, did not appear, nor did it appear that the note in suit, or any note, was referred to. There were running accounts between the parties. Ending and judgment for the defendant. Held, that this Court cannot disturb the finding.</p> <p>Even where the verdict is such as this Court would not find from the evidence, it is the settled rule not to disturb it, except in extreme cases.</p> <p>To justify interference by this Court, the insufficiency of the evidence must appear beyond all doubt.</p> <p>But in this case, payments having been made, and no claim except the note being specifically shown to exist, the Court must presume that the payments were made on the note.</p>

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

<p>Suit by the payee on a promissory note as follows: One year after date we promise to pay James L. Evans, guardian of the estate of George Rector, minor heir of Samuel Rector deceased, one thousand dollars, &c. It was contended that Rector was the real party in interest, and that Evans could not sue.</p> <p>Held, 1. That it appears by the face of the note that the payee was the real party in interest.</p> <p>2. That the words “ guardian of the estate of George Rector,” &c., may be regarded as surplusage, or as descriptio personae.</p> <p>Section 4, 2 B. S. p. 27, provides that an executor, administrator, or guardian, ' i* ( i of a lunatic, may sue, &c.; and though the guardian of a minor is not named, that class of suitors is within the meaning of the statute.</p> <p>The duty of a guardian to collect all debts due to his ward, implies the right to sue to enforce such collection.</p>

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

<p>Suit by a railroad company on a subscription of stock. The answer sot up fraud in this, that since defendant’s cash subscription, the company had taken a large land subscription at enormous prices, &c. Held, bad on demurrer.</p>

<p>Indictment for murder. On the trial, a brother of the deceased testified that he had participated in the fight in 'which the mortal wound was given; that he had not seen a certain hatchet used by any one; that he, witness, had not used a deadly weapon during the melee; that he simply hold a bowie-knife in Ms hand, but did not use it. With a view to Ms impeachment, bo was asked the following question: “Did you, or did you not, in Dr. B.’s office in this town, on the evening of the fight, in the presence and hearing of the doctor and one M., say that one of the persons engaged in the fight, would not fight again, as you had sunk the poll of the hatchet in his head.” The state objected, and the Court sustained the objection. Held, that this was error.</p> <p>A refusal to grant a new trial upon the ground that the evidence does not sustain the verdict, will not be considered erroneous, except in extreme cases.</p> <p>To obtain a new trial, upon the ground of newly discovered evidence, the defendant in a criminal case, must, in addition to his Own affidavit, either produce the affidavit of the proposed witness, stating what he will swear, or . account for its absence.</p> <p>The absence of such affidavit is sufficiently accounted for by the fact that the witness is not in the state, and that the defendant has been in prison and without the means to find him.</p> <p>The Court might, perhaps, of its own motion, continue the cause ponding a motion for a new trial, to give the prisoner a reasonable time to procure such affidavit.</p>

<p>APPEAL from the Cass Court of Common Pleas. 9</p>

<p>The complaint may be amended by substituting parties different from those in whose names the suit was originally brought, if such amendment does not substantially change the claim or defense.</p> <p>Such amendment will not entitle the defendant to a continuance.</p> <p>An application for a continuance, in such case, must be supported by affidavit, showing wherein the defendant is prejudiced by the amendment.</p> <p>Whore the plaintiff failed to answer interrogatories, though an order directing him to answer was made when they were filed, he was in default, and hence, cannot complain that no further steps were taken to enforce an answer, until the calling of the cause for trial.</p> <p>All defenses, except the mere denial of facts which the plaintiff, to sustain his action, is bound to prove, must be specially pleaded.</p> <p>Though the complaint ordinarily avers that the claim sued upon has not been paid, proof of that averment is not required, and it is not put in issue by .a general denial.</p> <p>The defendant cannot avail himself of the defense of payment without pleading it; and when pleaded, if there be no reply, there can be no trial, for want of an issue.</p>

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

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

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

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

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

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

<p>An agent who binds himself personally to pay, will be liable, although the consideration may move to his principal.</p>

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

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

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

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

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

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

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

<p>This was a case of partition of real estate under the statutes of 1838 and 1843, regulating descents. The decision cannot be succinctly stated. See the opinion.</p> <p>A defendant of unsound mind, should answer by a committee.</p>

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

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

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

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

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

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

<p>An information against a justice of the peace, under section G3, 2 R. S. p. 442, for failing to pay over to the county treasurer money received for fines, need not state from whom the money was received.</p> <p>By section 21, 2 R. S. p. 500, all sums paid over by justices of the peace on account of fines, are devoted to the use of common schools, whatever may have been the offense for which they were assessed.</p> <p>A re-enactment of a section with an addition, under art. 4, sec. 21 of the constitution, as construed in Langdon v. Applegate, is not a repeal of the original section.</p>

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

<p>The complaint, in this caso, alleges that tlie defendants fraudulently, &c., obtained from the plaintiff 100 dollars, by making the following agreement: “$100. Received of Philip C. Jones, Esq., of, &c., the sum of one hundred dollars, to be appropriated to the purchase of lands in Texas, &c., in connection with myself and others, or to be returned to said Jones, except his equal proportion of the expense of sending two agents to that country to explore it. This receipt entitles said Jones to an equal proportion with the balance of the company, of all lands purchased by their agents, John M. Clark and John Cullen, for said company. Oct. 13,1835. John M. Clark.” The complaint further denies that either of the agents went to Texas, and avers that they loft Virginia, where the contract was made, with the money, and invested it in lands in Indiana, for their own benefit. Suit commenced in 1855. Answer, that the cause of action did not accrue within six years. Demurrer, assigning for cause, 1. That the answer did not state facts sufficient, &c. 2. That the action was upon a written agreement to which the six years' limitation does not apply. Demurrer overruled. Held, 1. That the action was upon the written agreement. 2. That the demurrer should have been sustained.</p>

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

<p>The creditor of a partnership for goods sold, cannot recover against parties tvho have purchased the goods from the partners in good faith, and paid for them.</p> <p>He must look to his debtors, rather than to the goods, or to bona fide purchasers.</p> <p>The fact that such debtors have become insolvent, in the popular sense of the word, does not deprive them of the power of making such bona fide sales.</p> <p>It is only when partnership property is placed in the charge of trustees or Courts of equity, that it may be required to he first applied to the discharge of partnership debts.</p>

<p>Where a set-off is pleaded, the character of the indebtedness proposed to be set off, must be shown; and if it be a note or account, a copy thereof must be filed with the answer.</p> <p>An agreement to set off, without any setoff produced, is no more a defense, than the law authorizing set-off would be, in a case where no set-off was offered.</p>

<p>In this case, an infant was joined as co-plaintiff with his mother. The latter describes herself in the complaint as his next friend. Held, on demurrer, that this was sufficient.</p> <p>Husband and wife cannot, during the marriage, make contracts with each other, without the intervention of a trustee, which will be enforced at law; but a Court of equity will hold the husband and his heirs trustees of the wife’s separate property, if he take possession of it in any other way than by gift, express or implied.</p> <p>Although the presumption is that money of the wife, reduced to possession by the husband during the marriage, becomes his, such presumption is not conclusive; and the husband may so treat such money as to charge himself and his heirs, as trustees of the wife, with the duty of applying it to her separate use.</p> <p>And where it was agreed that the husband should invest the wife’s money in land for the use of her and her son, or return it to her—</p> <p>Held, 1. That in the former alternative, a resulting trust would be created in the land in favor of the wife; in the latter, it would be money had and received to her use.</p> <p>2. That even if the agreement was verbal, it was not within the statute of frauds. When the defendant answers, any relief may be granted consistent with the case made by the complaint, and embraced by the issue.</p>

<p>If in an action by a surety against the principals in a promissory note, for money had and received to the defendants’ use, a release of one of the principals be pleaded, the release, importing a consideration, must be set forth.</p> <p>An agreement by one of two makers of a promissory note to pay the whole debt, is no consideration for a release, by a surety, of the other maker.</p> <p>The note, in such cases, is admissible in evidence.</p> <p>The action not being brought upon the note, no question of variance can arise.</p> <p>The refusal of instructions assuming a state of facts not proved, is not error.</p>

<p>This Court will not so readily reverse a judgment of the Common Pleas or Circuit Court for granting a new trial, as for refusing it.</p> <p>A new trial is granted in the exercise of a sound discretion; and unless it plainly appear that injustice is done by that ruling, this Court will not intervene.</p>

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

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

<p>Judgment may be rendered by default, on a day prior to that set by the clerk for the trial of the cause.</p> <p>But a defendant cannot be forced into trial before the day for which the cause is docketed.</p> <p>Process served August 31. Court commenced September 10. Held, that the service was good.</p>

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

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

<p>In criminal cases, no appeal lios except from a final judgment.</p>

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

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

<p>That the plaintiff called upon the defendant, requested, &c., and that the defendant refused, &c., is a sufficient allegation of a demand, in a case where one is necessary.</p> <p>In a proceeding by attachment, an affidavit showing the nature of the plaintiff’s claim, the amount due, stating that it is just, and that the defendant is a non-resident, is sufficient.</p> <p>Non-appearance to a suit, is a waiver of a jury.</p> <p>In a suit by attachment, the record must affirmatively show that the statute has been strictly complied with.</p> <p>Eor, in such cases, the defendant, being a non-resident, having no actual notice of the suit, and not being represented in Court, waives nothing.</p> <p>Miter, where he appears, and fails to raise objections below.</p> <p>The provision of the constitution requiring this Court to give a written opinion upon every point arising in the record of every case, though merely directory, is. to be observed, subject to such a construction as obviates the difficulties of a literal compliance.</p> <p>A question, arising in the record, within the meaning of this provision, must be one, the decision of which is necessary to the final determination of the cause, and which the record presents with a fullness and distinctness, rendering it possible for the Court to comprehend it in all its bearings.</p>

<p>A party may subpoena Ms witnesses for a trial at law, -without special leave of Court; but he cannot re-examine them on the trial without such leave.</p> <p>And the rule is the same as to depositions; a party cannot retake the deposition of a witness without leave.</p> <p>3?or what should be embraced by the record on appeal to this Court, see the opinion.</p> <p>A motion for a new trial must be in writing; and where the record does not show that the motion was thus made, no question is presented upon the evidence.</p> <p>In a suit against two upon contract, if one plead infancy, and be an infant, the plaintiff may nol. pros, as to Mm, and proceed to judgment as to the other; and in such case, it seems, a release of the infant would not release the adult.</p> <p>But to the plea of infancy, the plaintiff, instead of entering a nol. pros., may reply a confirmation by the infant after becoming of age, whereby he had become a joint contractor, and liable as such; and in such case, it seems, a release of the infant would release both.</p>

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

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

<p>In an action for slander, where the slanderous words were spoken by indirection, ' without naming the plaintiff, the opinions of witnesses well acquainted with the parties and circumstances, to whom the words were spoken, are admissible in evidence, to show that the plaintiff was the person referred to.</p> <p>The grounds of such opinions are open to inquiry on cross-examination.</p>

<p>When a contract for the sale of a chattel is broken by the vendor failing to deliver it, and the purchaser has paid the price in advance, he may elect to rescind the agreement, and recover the money with interest; .but if he elect to affirm the contract and sue for damages, he cannot recover interest.</p> <p>Two plaintiffs in an action upon contract may recover jointly, though one sell his interest in the contract to the other, after the commencement of the action.</p> <p>The Court may, in its discretion, substitute the purchaser as sole plaintiff, or permit the suit to be prosecuted to judgment in the names of the original plaintiffs.</p>

<p>The authority of the Circuit Court to proceed in the trial of a cause, need not affirmatively appear in the complaint: objection to the jurisdiction may be raised by the answer, or at any subsequent stage of the proceedings.</p> <p>Upon the foreclosure of a mortgage, the rents and profits must be offered for sale, and may, of course, be sold.</p> <p>The sheriff's notice of such sale, need not state that the rents and profits will be first offered.</p> <p>In an action to recover an interest in real estate purchased at such sale, where the mortgagor and another were defendants, and they answered jointly in bar, it cannot be objected that the mortgagor was not shown to have been the owner of the land at the date of the mortgage.</p>

<p>Where stock running at large is killed by a railroad engine, at a point on the road not required by law to be fenced, the'rights and liabilities of the parties must be determined by common-law principles.</p> <p>The statute providing that the county hoard shall specify, by order on their records, what animals shall be allowed to run at large on the public common in each township, provides, by implication, that without such order, no animals will be permitted so to run at large; and as this Court cannot judicially know whether such orders exist, it will determine cases where no proof of such order appears, by the general rules of law.</p> <p>Where such order is shown to have been made, and an animal killed or doing damage, was one licensed to run at large, then the Court will, in connection with that act, consider the act relative to fencing against such animals, and the question whether the legislature can authorize the depasturage of cattle of one man upon the unenclosed lands of another.</p> <p>And, semble, that owners might be required to fence their lands, as a condition precedent to the right to recover damages for trespasses.</p> <p>Generally, where an injury happens to a party proximately through his own wrong, he cannot recover; but where such injury happens by the proximate wrong of another, he shall be liable, though the remote negligence of the injured party may have contributed to produce it.</p>

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

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

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

<p>The authorities on the points of practice stated in the above opinion reviewed. Zehnor v. Beard, 8 Ind. R. 96, affirmed. ,</p>

<p>In transactions between a debtor and his creditors which result in a deed oí composition, the utmost good faith is required.</p> <p>The debtor, in such case, professes to deal with all the creditors upon equal terms: hence, if he induces one of them to assent to the arrangement by giving him a secret preference over the others, he is guíby of fraud in obtaining the composition deed.</p> <p>It is a general rule, that an agreement cannot be made the subject of an action, or set up as a defense, if it can be impeached on the ground of dishonesty, or as being against public policy.</p> <p>Hence, a creditor thus deceived would have a right to consider the contract rescinded, and to sue on his original demand.</p>

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

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

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

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

<p>A. sued B. upon a written agreement for improving an alley. The contract was that A. should have a certain sum per linear foot from each owner, according to the extent of his ownership on the alley, payable on the completion of the work. A. averred performance; that B., who was a signer of the contract, held a lease for years on the alley; and that he refused to pay. Held, that the complaint was good on demurrer.</p> <p>B. then answered, denying ownership, and a demurrer to the answer was sustained. Held, that it was not necessary for A. to allege and prove a fee simple ownership; that B.’s lease and possession, taken in connection with his signature, were a sufficient ownership, within the meaning of the contract.</p> <p>But as B. failed to except to the ruling upon the demurrer, he has no right to have the question reviewed.</p>

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

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

<p>A city council cannot authorize a railroad company to take or injure the property of a citizen.</p> <p>Kailroad companies hare .implied power under their charters to make such side-tracks and continuations at the termini of their roads, as may be reasonable and necessary for the transaction of their business, and the accommodation of the public; and they may take private property for that purpose.</p> <p>A continuation of the track of the Indianapolis and Cindnnnati Railroad 200 rods beyond the depot at Lawrenceburgh, was not an unreasonable exercise of such power.</p> <p>The right to use and enjoy the street is an appurtenance to a lot abutting upon a street, and an injury to the appurtenance is an injury to the whole property.</p> <p>Where a street is taken by a railroad company, a party entitled to use and enjoy such street cannot pursue the statutory remedy, but must sue- for damages for a consequential injury.</p>

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

<p>No appeal lies from the decision of the Circuit Court, in a proceeding to contest an election.</p>

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

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

<p>As a general rule, where a party has been induced to execute an agreement by fraudulent representations of the other party, he may set up such representations in bar of an action on the agreement.</p> <p>But not if such representations, though false, relate to the legal effect of the instrument sued on.</p> <p>A party is presumed to know the contents of an agreement which ho signs, and hence, has no right to rely upon the statements of the other party as to its legal effect.</p>

<p>As a general rule, the vendor has a lien on the premises for the purchase-money, not only against the vendee and his heirs, hut against subsequent purchasers having notice that the purchase-money is unpaid.</p> <p>But this rule, as to notice of the lien, applies where the vendor has parted with the legal title, and not where the vendee simply holds a bond for a deed upon full payment.</p> <p>.In the latter case, a purchaser from the vendee is not regarded as a bona fide purchaser without notice; because he might have known of the existence of the lien by examining the title of his vendor.</p> <p>Where the original vendor' has not parted with the legal title, it must be intended that he holds it as security for unpaid purchase-money; and all the incidents of a mortgage, so far as the lien is concerned, attach to the contract of sale.</p> <p>An unpaid vendor is entitled to proceed as amortgagd/.</p> <p>On default of payment, he might tender back the money received of the vendee, and rescind the contract; but if he elect to affirm it and sue upon it for a failure to pay, and obtain a decree and a sale of the land, he cannot again, under the same contract, subject it to sale.</p> <p>The sheriff’s sale, in such case, would extinguish the entire lien; the legal title, held as a mere security, subject to the incidents of a mortgage, would pass to the sheriff’s vendee, as upon a mortgage sale.</p> <p>The continuance of a cause may be set aside at the same term at which it was ordered, and the parties required to go to trial, if the Court is satisfied that no injustice will result to either party.</p> <p>And where the grounds upon which the Court acted, in such case, do not appear in the record, they will be presumed to have been sufficient.</p>

<p>APPEAL from the Tippecanoe Court of Common Pleas.</p> <p>Prosecution under the liquor law of 1855.</p>

<p>In a suit in chancery to enforce a mechanic’s lien under the statute of 1843, a purchaser of the property after notice of lien, hut before the commencement of suit, who was in possession, was a necessary party.</p>

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

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

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

<p>If in a proceeding for diyorce, a petition, an answer and a cross-petition he filed, and afterwards the petition he dismissed, the whole case is out of Court.</p>

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

<p>If a party, assuming that he has several grounds of defense, answers in separate paragraphs without numbering them, his answer is bad on demurrer; whether the paragraphs really set up different defenses or not.</p> <p>If the complaint in a suit against B. on a subscription of stock, allege that A. made the subscription for B., and B. ratified it, it is no defense for B. to say that he did not subscribe.</p>

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

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

<p>In a suit upon several transcripts of judgments, the defendant answered that the notes upon which the judgments were recovered were obtained by fraud, and that he was induced to confess the judgments by fraudulent representar tions — setting out the particulars. Demurrer sustained. Held, that this was error.</p>

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

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

<p>Where process was served ten days before the first day of the term, it cannot be objected that it was made returnable on the second day; and a default may be taken on that day.</p> <p>Any defect in process amendable below, will be deemed to be amended in.this Court.</p>

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

<p>Suit before a justice of the peace by A., tbe assignee, against B., the assignor on a promissory note for 100 dollars. Tbe complaint charged that the note was due and unpaid, and that the mater was insolvent. In the conclusion, judgment was demanded for 100 dollars. Judgment by tbe justice, and appeal to the Circuit Court. , Motion to dismiss, on the ground that the sum, with the interest which had accrued, exceeded the jurisdiction of a justice, overruled. It was proved that the payor had offered to transfer, in payment of the note, another note for 100 dollars then due, which was subject to an offset of 20 dollars; that the payor’s property was not, at any time between the date of the assignment and the commencement of the action, worth more than 300 dollars; that the consideration received by the defendant was 86 dollars. Judgment for 97 dollars.</p> <p>Held, on.appeal, 1. That the motion to dismiss was correctly overruled.</p> <p>2. That the mater of the note being shown to be utterly insolvent, the assignee was not bound to bring suit against him.</p> <p>3. That the assignee was not bound to accept the note offered by the maker, nor would he have been bound to accept it even if it had been sufficient in amount to cover his demand.</p>

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

<p>A deposit by a grandfather in trust for his grandchild of what really belongs to the latter, will be uphold against the grandfather himself and those claiming under him; and the payment of the money back to the grandfather will not discharge the trustee.</p> <p>A general exception to several distinct instructions is bad, if any one of the instructions is correct.</p>

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

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

<p>A point not made in the Court below cannot bo raised in this Court.</p> <p>Where the overruling of a demurrer to a bill to revive a decree was assigned for error, held, that the assignment would not bo noticed, because the grounds of demurrer were not pointed out in the appellant’s brief.</p>

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

<p>In criminal causes, counsel have the same right to argue a question of law to the jury, as they have to argne questions upon the facts.</p> <p>The Court cannot prohibit argument in a criminal cause; but it may regulate the argument of causes by reasonable rules and limitations.</p> <p>The jury, in such cases, are to judge of the constitution as well as any other law of the land.</p> <p>Semble, that the Court instructs the jury in criminal cases, not to bind their consciences, but to inform their judgments; and that the jury arc not in duty bound to adopt the judge’s opinion as their own.</p> <p>Stocking v. The State (7 Ind. R. 326) affirmed, and Carter v. The State (2 Ind. R. 617) doubted, on this point.</p>

<p>If a person swear that he believes a thing to he so, it is equivalent to swearing that it is so.</p>

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

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

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

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

<p>Under our practice, the Court cannot order an involuntary nonsuit, under any circumstances.</p> <p>When a judgment is reversed and the cause remanded for trial, the cause stands upon the docket of the lower Court for trial at the next term, if filed in time; and if not filed in time, it stands continued by operation of law.</p> <p>If the complaint, in such case, is defective, the defendant should withdraw his answer and demur: he cannot move to dismiss, or to strike out a pleading for technical defect.</p>

<p>To sustain an application for a now trial on the ground of newly discovered evidence, the evidence discovered must relate to the issues made, and not to matters not involved in the suit.</p> <p>The party asking a new trial on that ground must make a strong case.</p> <p>Merely cumulative evidence will not sustain the application.</p> <p>Unless the evidence be in the record, this Court will not disturb the ruling of the Court below in overruling the motion.</p> <p>The ruling in Simpson v. Wilson (6 Ind. R. 474) affirmed.</p> <p>Newly discovered evidence must be judged with reference to the evidence given on the trial.</p>

<p>Trespass. After the evidence was closed and the argument concluded, but before the jury retired, leave was granted to enter a nol. pros, as to two minor defendants, for whom no guardian ad litem had been appointed, and to amend the complaint accordingly. Thereupon the remaining defendants moved for leave to examine them as witnesses, but the motion was overruled.</p> <p>Held, I. That the motion to enter a nol. pros, was, in effect, a motion for leave to amend by striking out the names of the infants, and was correctly sustained under section 99 of the practice act.</p> <p>2. The words “at any time,” in that section, are equivalent to the words “at any time before the jury retire to consult of their verdict.”</p> <p>3. The evidence being closed, .and the case on argument before the jury, it was discretionary with the Court to admit or reject the proposed witnesses; and there being nothing in the record to show that their rejection was an abuse of discretion, it must be presumed that they were properly rejected.</p>

<p>The clause of the constitution of the United States touching jury trials, does not operate upon the Courts of the several states.</p> <p>Not every case which is not a criminal case is a civil one.</p> <p>The clause of our state constitution which provides that in civil cases the right of trial hy jury shall remain inviolate, embraces, it seems, such cases as were treated as civil cases in this state when the constitution was adopted.</p> <p>Appeals to the Circuit Court from proceedings to assess damages to real estate taken for public works, have been uniformly tried hy jury in this state, and arc civil cases, within the above constitutional provision.</p> <p>The right of trial hy jury in such cases may he waived, as in other civil cases.</p> <p>On appeal to the Circuit Court from a report of appraisers, in such proceeding, a complaint is unnecessary. The party has a right to appear in the Circuit Court and demand a jury to retry the question of damages.</p> <p>The legislature may prescribe the trial hy jury in cases where the constitution does not give it as a right; hut they cannot withhold it in cases where it is so given.</p>

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

<p>Affidavit for a continuance to procure the testimony of an absent -witness; The opposite party agreed to admit all-the facts expected to he proved', hut denied the allegations expected to be proved. Held, that the admission was not sufficient.</p> <p>To defeat a continuance, the agreement that the facts shall be taken as true, should be without reserve.</p> <p>If the affidavit contain irrelevant matter, it is for the jury, under the direction of the Court, to say what facts are thus admitted.</p>

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

<p>Where a party agrees to deliver property on a day and at a place named in the contract of sale, to be paid for on delivery, such delivery and payment are concurrent acts, to bo done at the same time, and he cannot maintain an action on the contract without alleging and proving his readiness, at the time and place, to deliver the property to the vendee.</p> <p>But where the place of delivery is pointed out, but the day not fixed; and the vendee does not give notice of the day upon which ho will be ready to receive the property, though the nature of the contract requires such notice; or if he give notice that he will not receive it within the period of time fixed by the contract; then the vendee is in default, and the vendor can maintain his action.</p>

<p>APPEAL from the T>elawscure Circuit Court.</p>

<p>Suit for rescission of a contract. The writings were all between the parties to the suit; but the evidence disclosed that another person was interested. No objection as to the parties was taken in the pleadings. Held, 1. That the objection could not be raised on appeal. 2. That sufficient parties were before the Court.</p> <p>All trials under the code take the features of a trial at law, rather than those of a chancery trial; hence this Court accepts the verdict of a jury as generally conclusive upon the facts.</p> <p>If accompanying a contract, there be an express warranty, a party may have remedy for a breach, by suit upon the warranty.</p> <p>So, for false representations in a contract, or as to character for pecuniary responsibility, there may be an action of deceit; but in this action, a scienter must bo alleged and proved.</p> <p>In a sale by sample, the articles sold must, on delivery, correspond to the sample, or they may be rejected. Whore the question in a suit is as to what the terms of a written contract really are, parol evidence of prior and contemporaneous statements is inadmissible.</p> <p>A contract may be rescinded for some false and fraudulent representations constituting an inducement to it, whether the party making the representations knew them to be false or not; and in a suit to procure such rescission, parol evidence of such prior and contemporaneous representations, is admissible.</p> <p>Note. — The abstract of this valuable case has been purposely made very full. The exact language of the learned Judge who delivered the opinion of the Court, has been adopted in the statement of most of the points, with some slight changes for the sake of brevity.</p> <p>But tlie representation must be as to fact, and go to a material matter; it must be one upon which tho party to whom it was made has a right to, and does rely: mere matter of opinion, oxagerated or general representation of quality, matter equally open to tho knowledge of both parties, or matter not relied on, will not vitiate the contract, especially where tho parties stand mentally upon an equal footing, and in no fiduciary relation.</p> <p>A party who would rescind a contract on the ground of fraud, must offer to do so within a reasonable time after the fraud is discovered.</p> <p>Where no facts are involved but tho simple one of the length of time elapsed, the question as to reasonable time is one of law; but where disputed facts, involving questions of excuse, of time of discovery of the fraud, &c., are to be passed upon, the question is a mixed one of law and fact, and is for tbe jury-.</p> <p>On rescission, the general rule is, that the parties must be placed in the identical situation in_which they were on entering into the contract.</p> <p>A contract, if rescinded at all, must be rescinded in toto; and though the rescission cannot leave the parties, in every respect, as they were at the time they contracted, yet as to the contract itself, they may be so, as being no longer contracting parties, or liable on account of having been such.</p> <p>The fact that parties cannot be put precisely in statu quo as to the subject-matter of the contract, will not preclude a decree for rescission; otherwise, an executed contract could never be rescinded.</p> <p>Bor the party who has been defrauded by false representations, is not bound to offer to rescind till a reasonable time after he discovers the fraud: hence, the parties could not be placed in statu quo as to time.</p> <p>So, a party must be allowed to use the article before he can discover the fraud: heneo, there could be no statu quo as to the use of tho article; but if tho party has derived any benefit from such use, ho must, on tendering it back, offer to account for the benefit.</p> <p>So, as to the condition of the party practicing the fraud, it is not necessary that the other party should be able to place him in statu quo: if he can return to him in substance what he received, affected only by time and legitimate</p> <p>. experimental use, and is willing to take tho value of what he conveyed to the defrauding party, he can do so.</p> <p>But non-executed contracts may, on rescission, generally be brought within the rule, as to statu quo.</p> <p>If a party use or deal with property purchased, after he has fully discovered the fraud, he waives his right to a rescission.</p> <p>An application for the rescission of a contract, is addressed to the sound discretion of the Court, at the time it is to bo exercised; and to enable the Court rightly to exercise that discretion, it should be possessed of all the relevant facts in the ease.</p> <p>It does not necessarily follow, that a contract will be rescinded because it was fraudulent at its execution.</p> <p>If the defrauded party has been grossly negligent in complaining, has used the property, or otherwise surrounded the case with facts rendering it doubtful . whether; under any circumstances, a rescission could be rightly had; and it should bo shown that the value of tho article is almost as great as it was represented to be, that fact will have weight in removing the doubt.</p> <p>In such a ease, all the evidence as to value should be heard before deciding the point. •</p> <p>A patent from the British government, authenticated by the great seal, proves itself; but it only shows, prima facie, that the article patented is a new and useful invention, of some probable value, which is fully proved by a patent from our own government. And so of medals of scientific institutions.</p> <p>The report of a committee of a state board of agriculture, touching the utility of a patented machine, being ex parte, not under oath, and by men whose testimony might bo taken in a case involving that question, is hearsay, and inadmissible in evidence upon that point; though for some purposes, public documents are admissible.</p> <p>But the fact that sales of rights have been made in Illinois, is legitimate evidence to prove the valuó of the right to use such machine in other states.</p> <p>Where a witness had testified that the right to use a patented machine in certain ■territory was worth a certain sum, the Court would not permit him to testify that an unknown person had offered him that sum for the territory, but that ho, witness, had no authority to sell it. Held, that the proposed evidence was immaterial.</p>

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

<p>If in the progress of a trial it becomes obvious that a party in the examination of his witnesses, or in argument, is consuming time unnecessarily, the Court maj’-, in its discretion, arrest the examination or argument; and the exercise of this discretion will be sustained, unless an abuse of it is affirmatively shown.</p> <p>In this case, the jury, at twelve o’clock on Saturday night (Saturday being the last day of the term), reported to the Court that they could not agree. The plaintiff then asked the Court to instruct them whether a verdict on Sunday, after the expiration of the term, would be valid; and whether they were bound longer to deliberate. The Court refused any instruction — merely saj'ing to the jury that they were sworn and had better do their duty, and directing them to retire. Seld, that there was no error.</p> <p>A verdict may be returned and received on Sunday; but the judge cannot receive it at his house, or elsewhere, out of Court.</p>