UNIVERSITY 
 
 
 OF CALIFORNIA 
 
 )S-ANGEi.:, 
 
 LOS ANGELES 
 
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 LAW LIBRARY 
 
 
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 ^■ifi^^ms 
 
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 ,OFCAIIFO%
 
 REPORTS 
 
 OF 
 
 CASES AEGUED AND DETERMINED 
 
 IN THE 
 
 SUPREME COURT OF JUDICATURE 
 
 OF THE 
 
 STATE OF INDIANA. 
 
 WITH TABLES OF THE CASES AND PRINCIPAL MATTERS. 
 
 BY ISAAC BLACKFORD, A. M. 
 
 ONE OF THE JUDGES OF THE COURT. 
 
 SECOND EDITION. 
 Annotated by Warwick H. Ripley, Indianapolis. 
 
 the iaot-notes refer not only to cases wherein similar decisions are rendered, but also to 
 cases wherein the same principle is discussed or cited. 
 
 VOL. IL 
 
 CONTAINING THE CASES FROM NOVEMBER TERM, 1826, 
 TO MAY TERM, 1831, BOTH INCLUSIVE. 
 
 INDIANAPOLIS: 
 
 THE BOWEN-MERRILL CO 
 
 1890.
 
 30^5 
 
 Entered according to Act of Congress, in the year 1880, 
 
 By MERRILL, HUBBARD & CO. 
 
 In the office of the Librarian of Congress at Washington, D. C, 
 
 CARLON A HOLLENBECK, 
 
 PEINTEK8 AND BINDFKS, 
 
 INDIANAPOLIS. IND,
 
 JUDGES 
 
 OF THE 
 
 SUPREME COURT OF JUDICATURE 
 
 OF THE 
 
 STATE OF INDIANA, 
 
 DUKING THE PERIOD COMPRISED IN THIS VOLUME. 
 
 JAMES SCOTT, Esquire. 
 JESSE L. HOLMAK, Esquire. 
 ISAAC BLACKFORD, Esquire.* 
 STEPHEN C. STEVENS, Esquire. J 
 JOHN T. M'KINNEY, Esquire.J 
 
 *Ee-appointed on the 28th of January, 1831. 
 
 1831 
 expired, 
 
 ^^7705
 
 TABLE 
 
 OF THE 
 
 NAMES OF THE CASES 
 
 EEPORTED IN THIS VOLUME. 
 
 [Reference is made to * pages.] 
 
 Abornv. Burnett et al 101 
 
 Adair, Kimble v 320 
 
 Adams et al., Cooper v 294 
 
 Albertson, The State v 251 
 
 Alcorn v. Harmonson 235 
 
 Allen V. Clark et al 343 
 
 AUoway, Holt v 108 
 
 Andrews, Sheets v 274 
 
 Anthony, King v 131 
 
 Armstrong, Elliott v 198 
 
 Arnold et al. v. Styles et al 391 
 
 B 
 
 Barker V. M'Clure 14 
 
 Barlow v. The State 114 
 
 Bates, Berry v 118 
 
 Beach et al., M'Donald et al. v.. 55 
 
 Benetield et al., Eaton v 52 
 
 Berry v. Bates 118 
 
 Blackwell v. The Board of Jus- 
 tices of L. C 
 
 Blaney v. Findley et al...._ 
 
 Board' of Commissioners of V. C, 
 
 Jaques v 
 
 Board of Commissioners of V. C, 
 
 Rawley V 35o 
 
 Board of Justices of L. C, Black- 
 well V 143 
 
 Board of Justices of O. C, Gal- 
 
 letly V 221 
 
 Board of Justices of V. C, Jus- 
 tice V 1"^9 
 
 Booker v. Bowles 90 
 
 Bosley v. Farquar et al 61 
 
 Bowles, Booker V 90 
 
 Bowles V. Newby 364 
 
 Brackenridge v. Holland et al... 377 
 
 Brackenridge, Porter v 385 
 
 Braman et al.. Peck et al. v 141 
 
 Breckenridge, Gilly v 100 
 
 Brown, Frakes v 295 
 
 Brown v. Wyncoop 230 
 
 Bruner et al. v. Manville et al... 485 
 
 Brush, M'Glimmeryv 
 
 Bryan, Weaver v 
 
 Buckner, Jamison v ■ 
 
 Burnett et al., Aborn v 101 
 
 Bussel, Pugh V 366 
 
 Bussel, Pugh V 394 
 
 143 
 338 
 
 403 
 
 226 
 172 
 
 77 
 
 Cappv. Oilman 45 
 
 Capp, Pegg et al. v 257 
 
 Carson, Lurton v 464 
 
 Chinn v. Russell •• 1^1 
 
 Chinn v. Russell 1"- 
 
 Chinn et al. v. Perry 268 
 
 Clark, Dukes V 20 
 
 Clark et al., Allen v 34b 
 
 Clark V.Ellis ^ 
 
 Clements, Davis v -^ 
 
 Coles, Wilson v 402 
 
 Colvert et al., Simonds v 413 
 
 Cone v. Cotton et al 8"- 
 
 Conwell, Evill v 13^
 
 Vlll 
 
 TABLE OF CASES. 
 
 Con well, Longworth v 469 
 
 Cooper V. Adams et al 294 
 
 Cooper et al., The State v 226 
 
 Cotton et al., Cone v 82 
 
 Coulter et al., O'Brien et al. v... 421 
 
 Cowgill V. Wooden 332 
 
 Cox, Cutler v 178 
 
 Crane et ux. v. Douglass 195 
 
 Crane, Reno v 217 
 
 Cravens, Lindley v 426 
 
 Crawford et al., Harvey v 43 
 
 Culluni, Jackson d. Taylor v 228 
 
 Cummins, Gamble et al. v 235 
 
 Cupps V. Irvin 112 
 
 Cutler V. Cox 178 
 
 D 
 
 Daggett V. Kobins 415 
 
 Daniel et al., O'Brien et al. v 290 
 
 Davis V. Clements 3 
 
 Davis, Peggv 281 
 
 Devers, Test v 80 
 
 Dickerson v. Gray 230 
 
 Dickson, Kelsey 236 
 
 Doe d. Brown et al. v. Owen 452 
 
 Doe d. Harper, Hob.son v 308 
 
 Doe d. Helm v. Newland et al... 233 
 Doe d. Knapp et ux. v. Pattison 
 
 et al 355 
 
 Doe d. Murphy, Glass v 293 
 
 Doe d. Rapp, Harrison et al. v... 1 
 
 Doe d. Sheets v. Roe 195 
 
 Doe d. Wayman v. Naylor 32 
 
 Doe d. Webster, Rench v 309 
 
 Doe d. Wright, Ricks v 346 
 
 Dougherty v. Humpston 273 
 
 Douglass, Crane et ux. v 195 
 
 Driskill, M'Neely V 259 
 
 Duignan et al., Kelly v 420 
 
 Dukes V. Clark 20 
 
 Durham v. Musselman 96 
 
 E 
 
 Eaton V. Benefield et al 52 
 
 Elder v. Lasswell et al 349 
 
 Elder, M'Coy et al. v 183 
 
 Elderkin v. Shultz 345 
 
 Elliott V. Armstrong 198 
 
 Elliott et al. V. Ray 31 
 
 Ellis, Clark v 8 
 
 P^mmerson, Wheeler et al. v 293 
 
 Evans et al. v. Shoemaker 237 
 
 Evans et al. v. The State 387 
 
 Evill v. Conwell 133 
 
 Farmers and Mechanics' Bank of 
 
 Indiana, John et al. v 367 
 
 Farquar et al., Bosley v 61 
 
 Farrar, Miliary 219 
 
 Ferguson et al., Sheets v 257 
 
 Ferguson et al., Sweny et al. v... 129 
 
 Ferguson, Harrington et al. v... 42 
 
 Fike, M'Creary y 374 
 
 Findleyet al., Blaney y 338 
 
 Frakes v. Brown 295 
 
 G 
 Galletly v. The Board of Justices 
 
 of O.C 221 
 
 Gamble et al. v. Cummins 235 
 
 Gilly v. Breckenridge 100 
 
 Gilman, Capp v 45 
 
 Givan, Shewel v 312 
 
 Givan, Sims et al. y 461 
 
 Glancey et al.. Kipper et al. v... 356 
 
 Glass v. Doe d. Murphy 293 
 
 Glidewell et al. v. M'Gaughey... 359 
 
 Gordon v. Spencer 286 
 
 Governor, Modisett v 135 
 
 Governor y. Shelby 26 
 
 Governor, Shelby v 289 
 
 Governor v. Stribling et al 24 
 
 Governor, Thomp.son et al. v 142 
 
 Graves et al., Jenison et al. v 440 
 
 Graves, Ungles v 191 
 
 Gray, Dickerson v 230 
 
 Gray.son, Rappv 130 
 
 Green et al. v. Vardiman et al... 324 
 
 H 
 
 Haganlan v. Stafford 351 
 
 Hailstock, The State v 257 
 
 Hall y. Rogers 429 
 
 Harding, Wilson v 241 
 
 Harkness, Riley et al. v 34 
 
 Harmonson, Alcorn v 235 
 
 Harper v. Ragan 39 
 
 Harrington et al. v. Ferguson ... 42 
 
 Harrington v. W^itherow 37 
 
 Harris v. M'Faddin 71 
 
 Harrison et al. v. Doe d. Rapp... 1 
 
 Harvey v. Crawford et al 43 
 
 Hawkins, Johnson y 459 
 
 Hays V. M'Kee..... 11 
 
 Hendricks, Jamison v 94 
 
 Hicks et al.. The State v 336 
 
 Hiday, Wynn et al. v 123 
 
 Hoagland et al. y. Moore 167 
 
 Hobson v. Doe d. Harper 308 
 
 Holl)orn, Louisville and Port- 
 land Canal Company y 267 
 
 Holford v. The State..". 103 
 
 Holland et al., Brackenridge v.. 377 
 
 HoUowell, Reno et al. v 38 
 
 Holt y. Alloway 108 
 
 Hotfhkiss V. Lvon et al 222 
 
 Howell y. Wilson 418 
 
 Howk v. Kimball et al 309 
 
 Hul)bard, M'Clelland v 361 
 
 Humpston, Dougherty y 273
 
 TABLE OF CASES. 
 
 I ; M'Clelland V. Hubbard 361 
 
 ^,n ' M'Clure, Barker v 14 
 
 11- ; M'Cory, The State v 5 
 
 • M'Cov et al. v. Elder 183 
 
 J , M'Crackin, Taylor v 260 
 
 Jackson d. Tavlor v. Cullum 228 M'Creary v Fike 374 
 
 Tj.;^u„^^ 77 1 M'CYearv. Youse V ^ 
 
 55 
 
 Irvin, Cuppsv. 
 
 Jamison v. Buckner 77 , M'.Creary, Youse V;..-.- ;_■•••■ •■;••• 243 
 
 Jamison v. Hendricks 94 M gonald et al. y. Beach et al 
 
 Jaques v. The Board of Commis- ^i™*^r'' ^r'v\^ v...........-^... /I 
 
 sionersof V. C .- 403 j M'Gaughey, Glidewell et al. v 
 
 Jenison et al. v. Graves et al 440 
 
 John et al. v. The Farmers and 
 
 Mechanics' Bank of Indiana.. 
 
 Johnson v. Hawkins 
 
 Johnson et al., Modisett et al. v.. 
 
 Jones V. The State 
 
 Justice V. The Board of Justices 
 
 of V. C 
 
 K 
 
 Kelly V. Duignan et al 
 
 367 
 459 
 431 
 475 
 
 149 
 
 420 
 
 359 
 
 M'Glimmery V. Brush 226 
 
 M'Gruder v. Russell 18 
 
 M'Kay, Picquet v 465 
 
 M'Kee, Havs v H 
 
 M'Neely v. Driskill 259 
 
 Meek v. Ruffher 23 
 
 Merrill, Mitchell et al. v 87 
 
 Merriman V. Maple 350 
 
 Millar v. Farrar 219 
 
 Miller, The State V 35 
 
 Mills et al. v. Kuykendall 47 
 
 Mitchell et al. v. Merrill 87 
 
 Kelsey v. Dickson 236 i ^^itchell v. Sheldon et al 185 
 
 Kimball et al., Howk v 309 
 
 Kimble v. Adair 320 
 
 King V. Anthony 131 
 
 Kipper et al. v. Glancey et al ... 356 
 
 Kise et al., Patterson v 127 
 
 Knipev. Knipe. 340 
 
 Modisett v. The Governor 135 
 
 Modisett et al. v. Johnson et al.. 431 
 
 Modisett v. Lindley et al 119 
 
 Mofifattet al., Taylor v 304 
 
 Moffatt, Taylor V 305 
 
 Moodv et al., Naylorv • 247 
 
 Kuykendall, Mills et al. v 4/ j^jooj-e, Hoagland et al. v 167 
 
 Moore V. Martindale 3.5.3 
 
 L j Morris et al. v. Price 457 
 
 Lambert v. Sandford 137 I Mortsinger, Scott v 454 
 
 LaS V Wilburn 343 i Musselman, Durham v 96 
 
 Lasswell et al., Elder v 349 ^ 
 
 Lavman,Whalen V 194 ' 
 
 Leavell et al.. Levelling v 163 ! Naylor, Doe d. Wayman v 62. 
 
 Lefavour et al. v. Yandeset al... 240 ; Naylor v. Moody et al 247 
 
 Lefavour et al., Yandeset al. v.. . 371 i Neighbors v. Simmons '5 
 
 Lefavour, Roberts v 3-58 Xewby, Bowles v........... 364 
 
 Levelling v. Leavell et al 163 Ne-vland et al., Doe d. Helmv... 166 
 
 Lindlev V. Cravens 426 Nowland, Maguire v '6 
 
 O 
 
 223 
 
 Oatman, Wilson v 
 
 O'Brien et al. v. Coulter et al 421 
 
 O'Brien et al. v. Daniel et al 290 
 
 Owen, Doe d. Brown et al. v 452 
 
 Owen et al, Taylor v 
 
 301 
 
 Lindley et al., Modisett v 119 
 
 Logan V. Siggerson 266 
 
 Long V. Long 293 
 
 Longworth v. Con well 469 
 
 Louisville and Portland Canal 
 
 Company V. Holborn 267 
 
 Lurton v. Carson 464 
 
 Lutz et al. v. Lutz 72 
 
 Lyon et al., Hotchkiss v 222 p 
 
 ^I Parksv. Perry '^f 
 
 Maguire v. Nowland 76 j Patterson v. Kise et al..^ •• 12/ 
 
 ManviUe et al., Bruner et al. v.. 485 J Pattison et al.. Doe d. Knapp et ^_ 
 
 Maple, Merriman V ^'^"^ i ^ "^' ^';;"",'V l'"i o\(\ 
 
 Markle et al. v. Rapp et al 268 Payne, ^^ ashburn et al. v -i^ 
 
 Marklev. Steele .344 Pearce, The State v 31b 
 
 Martindale, Moore v...' 353 Peck et al. v^ Braman et al 141 
 
 Mathews et al.. Wright v 187 | Peden, The State v d^l 
 
 M'Clane et al., The State v 192 1 Pegg et al. v. Capp 
 
 257
 
 TABLE OF CASES. 
 
 Pegg V.Davis 
 
 Pence et al. v. Smock 
 
 Pennybaker v. The State. 
 Perkins et al. v. Smith ... 
 
 Perry, Chinn et al. v 
 
 Perry, Parks v 
 
 Picqiiet V. M'Kay 
 
 Polhird v. Rowland 
 
 Porter v. Brackenridge ... 
 
 Price, Morris et al. v 
 
 Pugh v. Bussel 
 
 Pugh v. Bussel 
 
 K 
 
 Eaburn v. Shortridge 
 
 Rackley, The State v 
 
 Ragan, Harper v 
 
 Rankin et al., White v 
 
 Rapp V. Grayson 
 
 Rapp et al., Markle et al. V 
 
 Rary, Swan v 
 
 Rawley v. The Board of Com- 
 missioners of V. C 
 
 Ray, Elliott et al. v 
 
 Ray et al. v. Roe d. Brown 
 
 Rench v. Doe d. Webster 
 
 Reno V. Crane 
 
 Reno et al. v. Hollowell 
 
 Ricks V. Doe d. Wright 
 
 Riley et al. v Harkness 
 
 Roberts v. Lefavour...... 
 
 Roberts, Vattier v 
 
 Robins, Daggett v 
 
 Roe d. Brown, Ray et al, v 
 
 Roe, Doe, d. Sheets v 
 
 Rogers, Hall v 
 
 Rowland, Pollard v... 
 
 Ruffner, Meek v 
 
 Russell, Chinn v 
 
 Rii'isel, Chinn v ...» 
 
 Russell, M'Gruder v 
 
 281 
 315 
 484 
 171 
 268 
 
 74 
 465 
 
 22 
 385 
 4.57 
 366 
 394 
 
 480 
 249 
 39 
 78 
 130 
 268 
 291 
 
 355 
 
 31 
 
 258 
 
 309 
 
 217 
 
 38 
 
 346 
 
 34 
 
 358 
 
 255 
 
 415 
 
 258 
 
 195 
 
 429 
 
 22 
 
 23 
 
 171 
 
 172 
 
 18 
 
 Sackett v. AVilson 
 
 Sanford, Lambert v.. 
 
 Scott V. Mortsinger 
 
 Server v. The State 
 
 Sheets v. Andrews 
 
 Sheet.s v. Ferguson et al ...... 
 
 Shelby v. The Governor 
 
 Shelby, the Governor v 
 
 Sheldon et al. Mitchell v 
 
 .'^Iielmire v. Thompson et al. 
 
 Shewel v. Givan 
 
 Shoemaker, Evans et al. v.... 
 
 Shortridge, Raburn v 
 
 Sliultz, Elderkin v 
 
 Siggerson, Logan v 
 
 Simmon.s, Neighbors v 
 
 Simond- v. Col vert et al 
 
 85 
 137 
 454 
 
 35 
 274 
 257 
 289 
 
 26 
 185 
 270 
 312 
 237 
 480 
 345 
 266 
 
 75 
 413 
 
 Sims et al. v. Givan 461 
 
 Smith, Perkins et al, v 171 
 
 Smith V. Smith et al 232 
 
 Smock, Pence et al. v.. 315 
 
 Spencer, Gordon v ., 286 
 
 Stafford, Hagamnn v 351 
 
 Stafford, The State v 412 
 
 State V. Albertson 251 
 
 State, Barlow v 114 
 
 State V. Cooper et al 226 
 
 State, Evans etalv 387 
 
 State V. Hailstock 257 
 
 State V. Hickset al 336 
 
 State, Holford v 103 
 
 State, Jones v 475 
 
 State v.M'Claneetal 192 
 
 State V. M'Corv 5 
 
 State V. Miller 35 
 
 State V. Pearce 318 
 
 State V. Peden 371 
 
 State, Pennvbaker V 484 
 
 State V. Rackley 249 
 
 State, Server v 35 
 
 State' V. Stafford 412 
 
 State, Stegars v 104 
 
 State V. Stucky 289 
 
 State, Townsend v 151 
 
 State, Weathers V 278 
 
 Steele, Markle v 344 
 
 Stegars v. The State 104 
 
 Stribling et al.. The Governor v.. 24 
 
 Stucky, the State v 289 
 
 Styles"et al., Arnold et al. v 391 
 
 Swan V. Rary 291 
 
 Sweny et al. v. Ferguson et al,.. 129 
 
 T 
 
 Taylor v. M'Crackin 260 
 
 Taylor v. Moffatt 305 
 
 Taylor v Moffatt et al 304 
 
 Taylor v. Owen et al 301 
 
 Test V. Devers 80 
 
 Thomasson v. Tucker's Adminis- 
 trators 172 
 
 Thompson et al. v. The Governor 142 
 Thompson et al., Shelmire v...... 270 
 
 Tolen V. Tolen .'.. 407 
 
 Townsend v. The State 151 
 
 Tucker's Administrators, Thom- 
 a.«son V •. 172 
 
 U 
 
 Ungles V. Graves 191 
 
 V 
 
 Vanblaricum et al. v. Yeo 322 
 
 Vardiman et al., Green et al. v .. 324 
 Vattier v. Roberts 255
 
 TABLE OF CASES. 
 
 XI 
 
 W 
 
 "Washburn et al. v. Payne 216 
 
 Weathers v. The State 278 
 
 Weaver v. Bryan •■•• 1"2 
 
 Whalen v. Layman 194 
 
 Wheeler et al. v. Emmerson 293 
 
 White V. Eankin et al 78 
 
 Wilburn, Larkin v 343 
 
 Wilson V. Coles 402 
 
 Wilson V. Harding 241 
 
 Wilson, Howell v 41 S 
 
 Wilson V. Oatman 22o 
 
 Wilson, Sackett V 85 
 
 VVitherow, Harrington v 37 
 
 Wooden, Cowgill v 332 
 
 Wright V. Mathews et al 187 
 
 Wyncoop, Brown v 230 
 
 W^ynn et al.v. Hiday 123 
 
 Y 
 
 Yandes et al. v. Lefavour et al.. 371 
 Yandes et al., Lefavour et al. v.. 240 
 
 Yeo, Vanblaricum et al. v 322 
 
 Youse V. M'Creary 243
 
 CASES 
 
 ARGUED AND DETERMINED 
 
 IN THE 
 
 SUPREME COURT OF JUDICATURE 
 
 OF THE 
 
 STATE OF INDIANA, 
 
 AT INDIANAPOIilS, NOVEMBER TERM, 1826, IN THE ELEVENTH YEAR 
 OF THE STATE. 
 
 Harrison and Others v. Doe, ou the Demise of Rapp. 
 
 Judical Sale — Appraisment. — The real estate of B. was, in 1823, sold on 
 execution under a judgment recovered against him by A. in 1822, which 
 judgment had not been replevied. A, the execution-plaintiflF, was the 
 purchaser for 565 dollars. The property sold had been appraised, under 
 the statute of 1820, at 4,640 dollars. In ejectment by A. for the premises, 
 it was held that no bid for the land could be made, under the statute of 
 1820, for less than 2,320 dollars, the one-half of the appraised value; and 
 that the sheriff's sale therefore for 565 dollars was void, and his deed 
 conveyed no title to the purchaser (a). 
 
 Same — Notice — Execution-Plaintiff. — If the purchaser of real estate at 
 sheriff's sale be the execution-plaintiff", he is considered a purchaser with 
 full notice, and accountable for all irregularities (6), 
 
 ERROR to the Knox Circuit Court. — Ejectment by 
 Doe ou the demise of Rapp against Harrison, Badollet, 
 and Buntiu, for a house and lot in Vincennes. Plea, not 
 guilt}'. Verdict and judgment for the plaintiff below. 
 
 (a) See 8 Blkf. 575; 1 Ind. 24; 19 Id. 15 ; 27 Id. 450 ; 12 Id. 192. 
 (6) See 8 Blkf. 575 ; 59 Ind. 466. 
 
 YOL 11.-1
 
 1-2 SUPREME COURT OF INDIANA. 
 
 Harrison and Others v. Doe, on the Demise of Kapp. 
 
 Scott, J. — On two judgments obtained by Frederick 
 Rapp against the bank of Vincennes in June, 1822, exe- 
 cutions of fi. fa. were issued and levied on the premises 
 in controversy. After the return of those executions, 
 writs of venditioni exponas w^ere issued, and on the 20th 
 of September, 1823, the property was sold, and Rapp be- 
 came the purchaser for the sum of 565 dollnrs, and re- 
 ceived the sheriff's deed. By the statute in force at the 
 time of this sale, it was provided that where the juda^- 
 ment had not been replevied, no real property 
 [*2] ^should be sold, on execution, for less than one- 
 half of its real value, Stat. 1820, p. 4 (1). The judg- 
 ment in this case was not replevied, the property was 
 valued according to the provisions of the statute, and the 
 real value, thus ascertained, was 4,640 dollars. Nothing 
 less than 2,320 dollars was a legal bid, and without a 
 legal bid there could be no legal sale. Any sum bid for 
 the property less than 2,320 dollars was as no bid at all; 
 and in that case the sheriff ought to have returned, that 
 the property remained unsold for want of buyers. 
 
 How far a stranger to the title of the execution-defend- 
 ant, or a person claiming under a title adverse to the 
 title of the bank, could take advantage of this circum- 
 stance in his defence in an action of ejectment; or how 
 this irregularity would affect a stranger, purchasing at 
 the execution-sale, for a valuable consideration, without 
 notice; are questions not within the case. Here the 
 defendants claimed title as assignees, and privies in estate 
 to the bank; and the property was purchased by the 
 execution-plaintiff, who must be considered a purchaser 
 with full notice, and accountable for all irregularities. 
 Simons v. Catliji, 2 Gaines, 61 ; Goodyer v. Jiince^ Yelv. 
 179; Parsons v. Loyd, 3 Wils. 341; Bead v. Markle, 3 
 Johns. R. 525 ; Lawrence v. Speed, 2 Bibb, 401 ; Hayden 
 V. Dunlap, 3 Bibb, 216. 
 
 The sale in this case was erroneous, and the sheriff's 
 
 i 
 
 (2)
 
 KOVEMBER TERM, 1826. 2-3 
 
 Davis, Assignee, v. Clements. 
 
 deed, made in pursuance of that sale, conveyed no title 
 to the purchaser. 
 
 On this ground, and without examining further into 
 the merits of the case, tlie judgment is erroneous and 
 must be reversed. 
 
 Per Curiam. — Tlie judgment is reversed with costs. 
 . Judah, for the plaintiiFs. 
 
 Tabbs, for the defendant. 
 
 (1) This statute is repealed. The sheriff now first offers for sale the 
 rents and profits of the premises for seven years ; and if they will not sell 
 for a sufficient sum to satisfy the execution, he then sells the fee-simple to 
 the highest bidder. E. C. 1831, p. 235. For the statute law of the difier- 
 ent states on this subject, vide 4 Kent's Comm, 2d ed. 428-438. Vide, 
 also, as to the lien of judgments on real estate, Ridge v. Prather, Vol. 1. ol 
 these Eep. 401, 404, note (2) ; K. C. 1831, pp. 274, 275. 
 
 [*3] * Davis, Assignee, v. Clements. 
 
 l^OTE — Failure of Consideration — Breach of Warranty. — Debt by 
 the assignee of a sealed note for the payment of money against the maker. 
 The note was dated on the 10th of June, 1817, and payable on or before 
 the 1st of December, 1818. Plea, that the note was given to the payee 
 for the purchase money of a certain tract of land which he represented 
 to be his, and for which he was to make a title to the defendant when 
 the note should be paid ; that the payee never had a title to any part of 
 the land ; and that, at the time of the plea, he was insolvent and had 
 absconded from the state. Held, that the plea was, under the statute, a 
 good bar to the action (a). 
 
 Same — Eight of AssiGNEE.-^Thetstatute secures to the obligor the same 
 equitable defence in an action by the assignee, that he would have been 
 entitled to had the action been by the obligee (b). 
 
 ERROR to the Martin Circuit Court.— Debt on a writ- 
 ino; obligatory for 146 dollars and 66 cents, executed by 
 Clements to Harris, and assigned by the latter to Oliver, 
 and by Oliver to Davis. The obligation is dated on the 
 10th of June, 1817, and is payable on or before the 1st of 
 
 (a) See 8 Blkf. 368; 6 Id. 59; 16 Ind. 132; 35 Id. 527. (6) Post 364. 
 
 (3)
 
 3-4 SUPREME COURT OF INDIANA. 
 
 Davis, Assignee, r. Clements. 
 
 December, 1818. Plea, actio non, because, &c., on the 10th 
 of June, 1817, Harris represented to the defendant that 
 he owned three lots of land in Franklin county, and 
 ottered to sell them to him. The defendant, accordingly, 
 purchased the lots of Harris for the sum of 146 dollars 
 and 66 cents; and then, on the 10th of June, 1817, exe- 
 cuted the obligation in question for the same. Harris, at 
 the same time, executed his bond to the defendant, con- 
 ditioned for the making of a good title in fee-simple for 
 the lots to the defendant, on his payment of the purchase- 
 money. Harris never had any title to the lots— they being 
 on the 10th of June, 1817, and still being the property of 
 Bates. Harris has never been able to make the defendant 
 a title for the lots. He is insolvent, and has absconded 
 from the state. Hence the defendant was defrauded in 
 the purchase, and has received no value for the obliga- 
 tion. The plea concludes with a verification. 
 
 General demurrer to the plea, and judgment for the 
 defpndaut. 
 
 HoLMAN, J. — Agreeably to the case of Leonard v. Bates, 
 May term, 1822, the decision of the Circuit Court in this 
 case is correct (1). The demurrer admits the facts stated 
 
 in the plea, that the note was given for the pur- 
 [*4] chase-money for * the land ; and that Harris never 
 
 had a title to the land, and could make no convey- 
 ance to the defendant. These facts, alone, show that the 
 consideration of the note has wholly failed. Although 
 the title was not to be made until pajmient of the money,- 
 it was to be made as soon as the mone_y was paid ; and 
 the defendant was not bound to part with his money, un- 
 til he saw not only a disposition but an ability in the ven- 
 dor to make the title. The cases cited in Leonard v. Bates 
 support this position; and one of the principal reasons of 
 this doctrine is given by Lord Kenyon in Goodisson v. 
 Niuin, 4 T. R. 761, — " that it would be absurd to compel 
 one partv to a compliance on his part without a compli- 
 
 (4)
 
 NO\^EMBER TERM, 1826. 4-5 
 
 Davis, Assignee, v. Clements. 
 
 ance on the other part, and put him to the necessity of 
 having recourse to the other for non-comphance, when 
 tliat other might be insolvent." But this case grows 
 stronger by the consideration, that what is supposed pos- 
 sible in other cases, is reduced to a certainty in this; for 
 it is a fact, admitted by the demurrer, that Harris, the 
 vendor, is actually insolvent, and has absconded from the 
 state. Under such a state of facts, the principles of com- 
 mon honesty would entitle the defendant to the most lib^ 
 era! construction of the foregoing doctrine in his favor, i 
 
 The defendant does not, as the plaintiff's counsel sup- 
 poses, rest this case as to the impeachment of the note on 
 the ground of fraud, as he must have, done at common 
 law ; but he rests his defence, principally, on a total fail- 
 ure of consideration under our act of assembly; and as 
 there has been a total failure of consideration, he is au- 
 thorized by the act of assembly to plead it (2). 
 
 If this note had remained in the hands of Harris, and 
 the action had been brought by him, this plea would have 
 been an unquestionable bar to the action ; and the act of 
 assembly secures to the obligor the same equitable defence 
 against the assignee that he would have had against the 
 obligee ; we therefore have no doubt but that the plea 
 was properly sustained (3). 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Tabbs, for the plaintiff. 
 
 Dewey and Kinney, for the defendant. 
 
 (1) Vol. I. of these Rep. 172, and note (2), p. 176; Muehmore v. Bates, 
 Ibid. 248. Where, as in the case in the text, the payment of the pnrchase- 
 money and the execution of the deed are to be concurrent acts, a suit can 
 
 not be sustained for the money until the vendor has executed or of- 
 [*5] fered to execute the title. Ibid. Nor can ■■•the vendee recover for a 
 
 breach of the contract, in such a case, unless he has paid the whole 
 of the purchase-money ; Huntington v. Cohnan, Ibid. 348 ; Meriivether v. Carr, 
 Ibid. 413; and unless he has also made a demand of the deed. Sheets v. 
 Andrews, Nov. term, 1829, post. 
 
 (2) Leonard v. Bates, cited in the text, and note (1) ; R. C. 1831, p. 405. 
 
 (3) The statute, after making notes and bonds assignable, enacts: — "that
 
 5 SUPREME COURT OF INDIANA. 
 
 The State v. M'Coiy. 
 
 such assignee or assignees shall allow all just set-offs, discounts, and de- 
 fence, not only against himself^ but against the assignor, before notice of 
 such assignment shall have been given to the defendant." R. C. 1824, p. 
 ;«0 ; E. C. 1831, p. 94. 
 
 The State v. M'Cory. 
 
 A.SSAULT AND BATTERY — FoRMER ACQUITTAL. — Indictment for an assault 
 and battery. Plea, that before the commencement of the prosecution, 
 the defendant had been arrested on the warrant of a justice of the peace 
 of the county for the charge set forth in the indictment; and that, after 
 a full examination of the case, the justice had acquitted him of the of- 
 fence. Held, on demurrer, that the plea was a good bar to the prosecu- 
 tion (a). 
 
 Same — Justice of Peace — Jurisdiction — Surety of Peace. — The stat- 
 ute, authorizing justices of the peace to punish trivial breaches of the 
 peace by fine not exceeding three dollars, is not unconstitutional ; and it 
 is discretionary with the justice whether to try a charge of a breach of 
 the peace himself, or to recognize the defendant to answer the same at 
 the next term of the Circuit Court. 
 
 ERROR to the Clark Circuit Court. 
 
 HoLMAN, J. — M'Cory was indicted in tlie Clark Circuit 
 Court for an assault and battery. Plea, that before the 
 finding of the bill by the grand jury, and before the com- 
 mencement of the prosecution, the defendant was arrested 
 by virtue of a warrant from a justice of the peace of said 
 county, on a charge of assault and battery, being a 
 charge of a trivial breach of the peace, and the same 
 charge set forth in the indictment; and being so arrested, 
 he was taken before John Peyton, Esquire, a justice of 
 the peace of said county, and put upon his trial for said 
 charge; and after a full examination of the case, he was 
 by the said justice adjudged not guilty of the offence, and 
 iinally acquitted. To which plea the attorney for the 
 state demurred ; the demurrer was overruled ; and the 
 defendant discharged. 
 
 (a) See post 8, 251 ; 6 Ind. 9.
 
 NOVEMBER TERM, 1826. 5-6 
 
 The State v. M'Cory. 
 
 The plaiutiif contends that the justice had no jurisdic- 
 tion of the case. The question of jurisdiction de- 
 [*6] pends on the *construction of the second section 
 of the act regulating the jurisdiction and duties of 
 justices of the peace, R. C. 1824, p. 236; taken in con- 
 nection witli the fifth section of the first article of the 
 constitution. This section of the constitution declares, 
 that " in all criminal cases, except in petit misdemeanors, 
 which shall be punished by fine only not exceeding three 
 dollars, in such manner as the legislature shall prescribe 
 by law, the right of trial by jury shall remain inviolate." 
 By the act of assembly, "it shall be the duty of the 
 justice of the peace to inquire into, and in a summary 
 way to punish, by fine not exceeding three dollars, all 
 trivial breaches of the peace; and judgment- give, and 
 execution award; and when, upon examination, it shall 
 appear that three dollars would not be an adequate pun- 
 ishment, it shall be his duty to recognize such oilender 
 and the witnesses to the next Circuit Court." The only 
 difiiculty on this subject arises from the vagueness of the 
 terms, ^^ petit misdemeanors and trivial breaches of the peace.'* 
 The legislature has considered these expressions as syn- 
 onymous, and we see no impropriety in it; for a trivial 
 breach of the peace is but a a petit misdemeanor; especially 
 where the breach of the peace merits no higher punish- 
 ment than three dollars. By this section of the constitu- 
 tion, those minor oflfences which, in the opinion of the 
 legislature, merit no higher punishment than three dol- 
 lars, are left entirely within legislative control ; and the 
 legislature has determined that trivial breaches of the 
 peace are of this class; and has therefore placed them 
 within the jurisdiction of a justice of the peace. 
 
 It should also be recollected, that this clause in the 
 constitution is expressly intended to guard individuals 
 from oppression, by securing to them a jury trial in all 
 cases where they were to be punished by a fine exceed- 
 ing three dollars. It is not intended to guaranty to the 
 
 (7)
 
 6-7 SUPREME COUKT OF INDIANA. 
 
 The State v. M'Cory. 
 
 community, that every oifence should receive an ade- 
 quate punishment. Under this provision, an individual 
 might object, if the legislature gave a justice of the peace 
 power to tine him more than three dollars; but the state 
 could not complain if the legislature thus placed, under 
 the jurisdiction of a justice, otfences which should be 
 punished by a higher fine than three dollars. We con- 
 sider that the legislature had full power to determine 
 that trivial breaches of the peace were but j^etit mis- 
 [*7] demeanors; *and to place them, as is c.one by this 
 act of assembly, within the cognizance of a justice 
 of the peace. :N"or is there anything in this clause of the 
 constitution, that prevents the legislature from giving 
 the justice of the peace a discretionary jurisdiction in 
 cases where the fine was not fixed, but was to be propor- 
 tioned to the circumstances of the case, as is done by this 
 act; limiting the power of fining to three dollars." The 
 constitution does not require that the legislature should 
 fix the amount of the fine: that power may be constitu- 
 tionally delegated to the justice of the peace; for such a 
 discretionary jurisdiction can not oppress the ofiender, 
 inasmuch as it the justice of the peace inflicts the punish- 
 ment, it can not exceed three dollars; and if he deter- 
 mines that three dollars is not an adequate punishment, 
 and recognizes the ofiender to the Circuit Court, he 
 would then be in the same situation in which he would 
 have been if the justice of the peace had had no power to 
 fine in any case: and in neither case can the state com- 
 plain that the constitution is violated. 
 
 The twelfth sec. of the first art. of the constitution 
 does not reach this case. That section declares, that " no 
 person shall be put to answer any criminal charge but by 
 presentment, indictment, or impeachment." Eut it is evi- 
 dent from the fifth section, that the framers of the con- 
 stitution did not consider a petit misdemeanor to be a 
 criminal charge. It should be further considered, that 
 this section also is intended to oniard individuals against 
 
 (8) ^
 
 NOVEMBER TERM, 1826. 7-8 
 
 The State v. M'Cory. 
 
 oppression; and the character of tlie act under consider- 
 ation is the very reverse of oppression. We question 
 whether a single individual has ever been heard to com- 
 phiin, that his constitutional rights have been infringed 
 by placing the determination of an offence, of which he 
 has been charged, within the jurisdiction of a justice • 
 the peace, instead of giving it to the Circuit Court to be 
 tried l)y presentment or indictment. 
 
 This case must then rest on the construction of the act 
 of assembly. And here it is evident, that the jurisdic- 
 tion of the justice of the peace is not confined to cases 
 where the fine is fixed, and is never to exceed three dol- 
 lars. His jurisdiction, unquestionably, embraces a chtss 
 of cases where three dollars may be an inadequate pun- 
 ishment. Of this character are assaults, and assaults and 
 batteries." And we have no doubt but that the legislature 
 intended to place those ofi:ences within his discre- 
 [* 8] tionary jurisdiction ; authorizing him to hear *and 
 determine them, if they w^ere of a trivial nature; 
 but if he was of opinion, that a fine of three dollars was 
 an inadequate punishment, he was to transmit them to 
 the Circuit Court. There are many assaults, and assaults 
 and batteries, which are but trivial breaches of the peace 
 — but petit misdemeanors, that are sufiiciently punished 
 by a fine of three dollars; these are, nnquestionably, de- 
 terminable by the justice of the peace. There are others 
 of an aggravated nature, where such a fine would be 
 wholly inadequate; and where the oftender should be re- 
 cognized to the Circuit Court. But if the justice exer- 
 cises jurisdiction in those cases, and inflicts a fine not ex- 
 ceeding three dollars, Ave know not how his judgment 
 can be called in question in the Circuit Court. Where 
 the justice acquits, as in this case, it would seem that the 
 question was at an end (1). 
 
 The motion to withdraw the demurrer and reply to the 
 plea, and the refusal of the Court to grant that liberty, 
 are no part of the record. 
 
 (9)
 
 8-9 SUPREME COURT OF INDIANA. 
 
 Clark V. Ellis. 
 
 Per Curiam. — The judgment is affirmed. 
 Kingsbury, for the state. 
 Howk, for the defendant. 
 
 (1) "Vide the next case — Clark v. EUi& — and note (1). 
 
 Clark v. Ellis. 
 
 Justice of the Peace — Jurisdiction — Misdemeanors. — In a prosecution 
 before a justice of the peace for an assault and battery under the statute 
 of 1818, the defendant was found guilty by the jury and fined three dol- 
 lars. An action of slander was afterwards brought for words charging 
 the plaintiff with having sworn false on that trial; and the words were 
 objected to as not being actionable, on the ground that the justice had 
 no jurisdiction. Held, that though the statute were deemed unconstitu- 
 tional so far as it gave the justice authority to inflict a fine exceeding 
 three dollars ; yet when, as in this case, the fine inflicted did not exceed 
 that sum, the objection was untenable (o). 
 
 Constitutional Law — Pro tanto Void. — A statute may be unconstitu- 
 tional as to one part of it, and valid as to the residue (6). 
 
 ERROR to the Monroe Circuit Court. 
 
 Holm AN, J. — A trial was had in May, 1822, in a prose- 
 cution for an assault and battery, before a justice of the 
 peace, under the act regulating the jurisdiction and du- 
 ties of justices of the peace, approved January the 
 [* 9] 28th, 1818. On that * trial the plaintiff was sworn 
 as a witness and gave evidence; and the defend- 
 ant, it is said, charged him with swearing false and com- 
 mitting perjury in his evidence so given. For this charge 
 this action is brought. 
 
 There were special demurrers to the first and third 
 counts in the dechiration, which were sustained by the 
 Circuit Court; and instructions were requested, which 
 were in substance, "that if the jury found that the de- 
 famatory words were spoken with reference to a swearing 
 
 (a) See 4 Ind. 264, 578. 
 
 [b) See 11 Ind. 482; 59 Id. 173, 179, 205 ; 58 Id. 88. 
 
 (10)
 
 NOVEMBER TERM, 1826. 9-10 
 
 Clark r. Elli^^. 
 
 Oil said trial, they should find for the plaintiff; " which 
 instructions the Court refused to give. A verdict was 
 found for the defendant, and judgment was accordingly 
 given. 
 
 There are a variety of minor questions raised in the 
 case — as to the specifications of the charge in the declar- 
 ation — the technical construction of the testimony — and 
 the explaining of the docket of the justice of the peace 
 b}' parol evidence — all of which we deem unimportant. 
 The cause of action is sutficiently described ; the testi- 
 mony comports in substance with the character of the 
 action; and the testimony relative to the docket of the 
 justice of the peace was not improper. 
 
 The whole case may be considered as resting on the 
 constitutionality of the act of assembly, under which the 
 Justice of the peace acted. 
 
 This act of assembly authorizes a justice of the peace 
 to impanel a jury, and to try cases of riots, routs, aftrays, 
 breaches of the peace, &c. ; and to fine an offender, agree- 
 ably to the verdict of a jury, not exceeding 20 dollars. 
 (1). But it appears from the record in this case, that the 
 trial which gave rise to this controversy, resulted in a fine 
 against the offender to the amount of three dollars only. 
 Agreeably to the decision in the case of The State v. 
 M'Cory, at this term, the legislature may authorize a jus- 
 tice of the peace to exercise jurisdiction over cases of as- 
 sault and battery, and to fine the ofi'ender to the amount 
 of three dollarsr And what the legislature could author- 
 ize him to do without a jur}', they could certainly author- 
 ize him to do with a jur}', as in this case. So that, with- 
 out entering into the disputed question about the consti- 
 tutionality of that part of the justice's jurisdiction, which 
 has been taken away by the legislature, there can be no 
 question, but that so far as the justice of the peace pro- 
 ceeded in the trial referred to in this action, he 
 [* 10] was within * tiie jurisdiction which the legislature 
 had constitutional authoritv to give. We have 
 (11)
 
 10 SUPREME COURT OF INDIAI^A. 
 
 Clark V, Ellis. 
 
 heretofore decided that a part of an act of assembly be- 
 ing unconstitutional, does not affect a constitutional part 
 of the same act relative to the same subject. That part 
 which is unconstitutional, is considered as if stricken out 
 of the act; and if enough remains to be intelligibly acted 
 upon, it is considered as the law of the land. If this 
 were done in relation to this act of assembly, the justice 
 of the peace would still retain a jurisdiction in cases of 
 assault and battery, and might give a definite sentence 
 where the case merited a fine no higher than three dol- 
 lars. We, therefore, consider that the trial under consid- 
 eration was a judicial proceeding, in which a witness 
 might commit perjury; and that the words contained in 
 each of the counts in the declaration are actionable. 
 
 The special demurrer, and the instructions required, 
 turn substantially on the same points; the demurrer 
 should, therefore, have been overruled, and the substance 
 of the instructions have been given to the jury. 
 
 Per Curiam. — The judgment is reversed, and the ver- 
 dict set aside, with costs. Cause remanded, &c. 
 
 Naylor, for the plaintiff. 
 
 Wick, for the defendant. 
 
 (1) The provision in the act of 1818, referred to in the text, was repealed 
 in 1823. Stat. 1823, p. 51. The provision, substituted by the act of 1823 
 for the one repealed, is adopted in the R. C. 1824, p. 236, sec. 2. The pro- 
 vision in R. C. 1824, is copied and commented on in The State v. M'Cory, 
 the case next preceding the one to which this note is annexed. The act 
 now in force is as follows: "In prosecutions before justices, for an assault 
 and battery, affray, or other breach of the peace, the defendant shall be 
 tried by the justice alone, demand a jury, or be recognized to the Circuit 
 Court, at his election. If the defendant be found guilty before the justice. 
 the fine shall not be less than one dollar nor more than 20 dollars. If, on 
 hearing the case submitted to him, the justice shall be of opinion that it is 
 of a nature so aggravated that adequate punishment can not be inflicted 
 under this act, he shall recognize the defendant to the Circuit Court." R. 
 C. 1831, p. 294., 
 
 (12)
 
 NOVEMBER TERM, 1826. 11 
 
 Havs r. M'Kee. 
 
 [*11] 
 
 *Hays v. MlvEE. 
 
 Appearance— Jurisdiction— Waiver.— The defendant, by pleading to 
 the action, waives all objection on account of the want of process (a). 
 
 Eecord— Writ and the Return.— Neither the capias ad respondendum, 
 nor tlie sherifl''s return on it, can be noticed by this Court, unless it l)e 
 made a part of the record in some way known to the law. (b) 
 
 Pleading— Similiter— Cured by Verdict.— The addition of the simili- 
 ter is only a matter of form, and the want of it is aided by a verdict 
 
 ERROR to the Franklin Circuit Court.— Trespass by 
 M'Kee against Hays and several others, for breaking 
 into his close and taking away his goods. Plea of justifi- 
 cation. Replication in denial, concluding to the country. 
 'No similiter. Verdict of guilty against Hays— damages 
 149 dollars and 20 cents; and of not guilty as to the 
 others. Judgment against Hays agreeably to the verdict. 
 
 Scott, J.— The plaintiff in error alleges that, prior to 
 the trial, he was not served with process, nor had he 
 appeared to the action. It is stated in the record, that 
 at the October term in the year 1821, the parties came by 
 their attorneys, and the defendants were ruled to plead; 
 and that on the following day several defendants, of 
 whom the plaintiff in error was one, filed their pleas pur- 
 suant to the rule of Court. By this statement it would 
 seem that he was present in Court, either in his proper 
 person or by his attorney, and pleaded to the action ; by 
 which he waived any advantage which he might have 
 taken of the want of process (1). 
 
 It seems to have been taken for granted, that this 
 Court would notice the sheriff's return to the writ, and 
 see that it was not served on Hays; but as the writ and 
 return are not made part of the record in any way known 
 
 (a) See 59 Ind. 205 ; 43 Id. 357 ; 58 Id. 94; 37 Id. 300 ; 18 Id. 128 ; 46 Id. 
 315; 27 Id. 323; 25 7c?. 376. 
 
 (b) See 24 Ind. 468 ; 26 Id. 287 ; 27 Id. 253 ; 36 Id. 490 ; 51 Id. 122 ; 9 Id. 
 479. 
 
 (13)
 
 11-12 SUPREME COURT OF INDIAi^A. 
 
 Hays V. M'Kee. 
 
 to the law, we can not regard them as evidence of that 
 fact (2). 
 
 It is further assigned as error that there was no issue, 
 tliere being no similiter added to the replication. It was 
 formerly held that the want of a similiter was a sub- 
 stantial defect and could not be aided by a verdict; but 
 that doctrine has been overruled. The addition of the 
 similiter is now considered matter of form, and the want 
 of it is aided after verdict. The substance of the 
 [*12] issue is the affirmative *and the negative, con- 
 tained in the pleadings : the similiter is merely an 
 expression of the willingness of the party to submit his 
 case to a jury. Vide 1 Chitt. 571; 2 Saund. 319, n. 6; 
 Harvey v. Peake, 3 Burr. 1793 (3). 
 
 Per Curiam. — The judgment is affirmed, with 1 j9er 
 cent, damages and costs. 
 
 Lane, for the plaintiff. 
 
 (1) Vide Leivis v. Breckenridge, Vol, 1 of these Rep, 112. 
 
 (2) Vide Shields v. Cunningham, Vol. 1 of these E.ep. 86. In cases of 
 judgments by default for want of appearance, the writ, with the indorse- 
 ment, is a necessary part of the record. Nadenbush v. Lane, 4 Rand. 413. 
 
 (3) The tendering of an issue to the country by one party, viz. the prayer 
 to have the cause tried by a jury ; and the acceptance of the issue, that is, 
 the consent of the opposite party to have the cause so tried ; was a mode of 
 proceeding adopted by the parties in England at an early period, in order 
 to have certain causes tried by an inquisition of twelve men, which, without 
 this mutual consent, must have been at that time decided by ivager of battel. 
 Steph. on Plead. Appendix, note, 34 ; 1 Reeves' Eng. Law, 334. The law 
 has been long since changed ; and the right to a trial of questions of fact 
 by a jury no longer depends upon the consent of the parties. If an issue 
 to the country be properly tendered by either of the parties, the other is 
 compelled to accept of it. The party tendering the issue may even add the 
 similiter him.self, if his opponent should fail to do it. Hence it .appears, 
 that the adding of the similiter — the mere entry of the party's consent 
 (which he can not refuse to give) to a submission of the cause to a jury — is 
 now only a matter of form ; and that its omission is aided by verdict. It 
 must be admitted, however, that there is some confusion in the books on 
 this subject. Besides the authorities cited in the text, vide Steph. on Plead. 
 254, 255; Gould's Plead. 313-316; .Tared \. Ooodtitle, Vol. 1 of these Rep. 
 29, and the cases cited in note (2^ ; 2 Arch. Pr. 272, 273 ; 2 Tidd's Pr, 8th 
 Lond. ed. 956. 
 
 (14)
 
 NOVEMBER TERM, 1826. 12-18 
 
 Havs V. M'Kee. 
 
 Having had occasion in this note to mention the trial by wager of battel, 
 the reporter will, perhaps, be excused for adding a short notice of a pro- 
 ceeding of this kind which recently occurred in England :— 
 
 " Inihe year 1817 Mary Ashford, a young woman residing in Warwick- 
 shire, was murdered under circumstances exciting the strongest suspicion 
 against Abraham Thornton, who had been her companion the previous 
 evening. He was acquitted on his trial upon evidence of an alibi, which 
 apparently covered the short period in which the crime was perpetrated ; 
 but the brother of the deceased was advised to bring his writ of appeal, and 
 the proceedings thereon in the Court of K. B. excited the greatest interest 
 in the public mind. The accused, when brought into Court, pleaded as 
 follows :—' Not guilty, and I am ready to defend the same by my body.' 
 And thereupon taking off his glove, he threw it upon the floor of the Court. 
 The appellant, after taking time, counterpleaded, setting forth all the facts 
 tending to prove the guilt of the appellee, and praying that he might not 
 be allowed his wager of battel ; to which the latter, in reply, stated the evi- 
 dence in his favor, which led to his acquittal. Upon these pleadings, after 
 an elaborate argument by counsel, the Court held that there was not suffi- 
 cient on the face of the proceedings to justify them in refusing the battel ; 
 but whether the Court should allow the appellee his wager of battel, or to 
 go without day, they did not then determine ; suggesting to the ap- 
 [*13] pellant *the propriety of considering whether he would wish any 
 further judgment to be given. A few days after, the appellant by 
 his counsel stated, that he prayed no further judgment of the Court, where- 
 upon the Court ordered the judgment on the appeal to be stayed, and the 
 appellee to be discharged. See the case at length, 1 Bar. & Aid. 405. 
 
 " In the next session of parliament an act was passed to abolish appeals 
 of murder, treason, felony, or other offences, and wager of battel, or joining 
 issue and trial by battel in writs of right. 59 Geo. 3, c. 46." 3 Chitt. BI. 
 
 337, note (6). . r .i,- 
 
 The American minister, Mr. Rush, was present at the argument of this 
 extraordinary case. The following are his remarks :- 
 
 "April 16 [1818,] went to the Court of King's Bench to hear the argu- 
 ment in the case of wager of battle. The parties were present. 
 
 " By the ancient law of England, when a person was murdered, the near- 
 est relation of the deceased might bring what was called an appeal of death, 
 against the party accused of the murder. Under this proceeding the ac- 
 cuser and accused fought. The weapons were clubs. The battle began at 
 sunrise, and was in presence of the judges; by whom also all formalities 
 were arranged. Part of the oath was, that neither combatant would resort 
 to witchcraft. If the accused was slain, it was taken as a proof of his gm t ; 
 if the accuser, of his innocence. If the former held out until star-light, 
 that also attested his innocence. If either yielded whilst able to hght, it 
 worked his condemnation and disgrace. Those who wish a full description 
 of these curious proceedings, may seek it in Sully, or continental writers o 
 an earlier day, as Froisart ; the custom having been imported into England 
 
 (15)
 
 13-14 SUPREME COURT OF INDIANA. 
 
 Barker v. M'Clure. 
 
 by the Normans. The foregoing summary will give a general idea of it. 
 
 "It was a mode of trial for dark ages. Ashford the appellor, had ac- 
 cused Thornton the appellee, of the murder of one of his relations, and the 
 latter desired to fight. In the highest tribunal of the most enlightened 
 country in Europe, I was listening to a discussion whether or not this mode 
 of trial was in force in the nineteenth century ! It was difficult to persuade 
 myself of the reality of the scene. Mr. Chitty, a lawyer of eminence, ar- 
 gued against the right of battle. Mr. Tindall had argued on the other 
 side, on a former day. Fleta, Bracton, the Year-Books, and other reposito- 
 ries of ancient law were ransacked. Abundant ability was displayed on 
 both sides. The greatest order prevailed ; even gravity. The judges were 
 in their robes. About seventy lawyers sat in front of them; all in gowns 
 and wigs, listening, apparently, with profound attention. Finally, the 
 judges decided that trial by battle ^ms in force ; for it had never, it seems, 
 been repealed. 
 
 " In the end, no battle was fought. A technical flaw interposed to pre- 
 vent it, and parliament passed a repealing statute. But the case marks an 
 incident in English jurisprudence, having come near to converting the 
 Court of King's Bench into a theatre for prize fighting." — Bush's Mem. 202, 
 
 [*14] *Barker v. M'Clure. 
 
 Principal, and Surety — Judgment Stay — Release of Surety. — The 
 single fact, that the creditor has taken a judgment by confession from 
 the principal debtor with a stay of execution for six months, can not be 
 pleaded by the surety in bar of an action against him by the creditor. 
 The plea in such case, to be valid, must also show that the creditor could, 
 by the ordinary proceedings at law, have collected the money sooner 
 from the principal debtor, than by the course which he had pursued ; 
 and that the time was given to the principal without the surety's consent. 
 
 NuL TiEL Record— Question op Law. — The issue on nul tiel record is for 
 the Court, not for the jury, to decide (a). 
 
 Judgment — Practice— Finding. — Issues on three pleas in bar to the whole 
 cause of action. The first triable by the Court ; the second and third by 
 a jury. The second and third were tried and found for the plaintiff. 
 Held, that the plaintiff" could not have judgment, until he had also suc- 
 ceeded on the first issue (6). 
 
 APPEAL from the Gibson Circuit Court.— Debt by 
 M'Clure as^ainst Barker upon a writing obligatory for 
 
 (a) See 6 Blkf. 123 ; 7 Id. 272 ; 5 Id. 585. (6) See 17 Ind. 183. 
 
 (16)
 
 NOVEMBER TERM, 1826. 14-15 
 
 Barker v. M'Clure. 
 
 the payment of 200 dollars. The obligation appeared, 
 on oyer, to be joint and several, and to have been exe- 
 cuted by Prince, Sloan, and Barker, Three pleas: first, 
 a former recovery against all the obligors. Replication 
 to this plea, that M'Clure did not recover judgment 
 against the three obligors, as appears by the record ; and 
 that no such judgment does or ever did exist; and this 
 he is ready to verify. Second plea, that Sloan and Bar- 
 ker were sureties for Prince in the obligation ; that after 
 the same became due. Prince and Sloan appeared in 
 Court, and, by agreement with M'Clure, confessed judg- 
 ment in his favor for the amount due on the obligation, 
 which judgment is still in force; and that M'Clure gave 
 Prince the further time of six months within which to 
 pay the judgment. This plea was demurred to, but, .the 
 Court considering it good, the plaintiff withdrew his 
 demurrer, and replied denying that he had given further 
 time for payment as the defendant had alleged. Issue 
 on this replication. Third plea, payment. Replication 
 in denial, and issue. 
 
 Verdict and judgment for the plaintiff below. 
 
 HoLMAN, J. — A bill of exceptions shows, that the de- 
 fendant offered parol evidence in support of his second 
 plea, — that the plaintiff did give further time for pay- 
 ment as pleaded; but the plaintiff objected to the evi- 
 dence, on the ground that if such further time was 
 [*15] given it could be proved *by written evidence 
 only; and the Court sustained the objection, and 
 rejected the evidence (1). 
 
 The rejection of this evidence is the most prominent 
 feature in the case. It is justified by the defendant in 
 error, on the ground that the plea is no bar to the action. 
 The plea can not be supported. We have seen no case 
 where the single fact of taking a judgment of the prin- 
 cipal, and giving a stay of execution, was of itself a re- 
 lease of the surety, either in law or equity. The doctrine 
 Vol II.— 2 (17)
 
 15-16 SUPREME COUET OF im)IA::A. 
 
 Barker r. M'C'lure. 
 
 relied on from 1 Maddock, 234, is founded on Rees v. Ber- 
 rington, 2 Yes. Jr. 540. That case is, that if the obligee 
 iu a bond takes a note from the principal, and gives far- 
 ther time for payment, without the surety's knowledge, 
 the surety is released in equity. It is also laid down in 
 the same case, that if the creditor is called upon by the 
 surety to sue for his demand, and does sue and get judg- 
 ment, but gives a stay of execution without the surety's 
 knowledge, the surety is released. This is the strongest 
 case in the defendant's favor that we have seen in the 
 chancery reports; and the present plea falls short of this 
 case in two important particulars. First, this judgment 
 seems to have been confessed without any previous pro- 
 cess; so that it does not appear but that, after the expir- 
 ation of the six months, execution might have issued as 
 soon as it could have issued if there had been no agree- 
 ment, and the regular course of preparing the suit for 
 trial had been pursued. But the most important defect 
 in the plea is, that it does not appear that the further 
 time of payment was given without the knowledge of 
 Barker. So that, even in equity, where sureties are chiefly 
 recognized and peculiarly favored. Barker's plea would 
 have availed him nothing (2). But chancery is the proper 
 tribunal to grant relief in those cases, for there the par- 
 ticular circumstances of each case can be set forth. This 
 may sometimes be done in equitable actions at law; but 
 the general principles of common law, relative to writings 
 obligatory, know nothing of sureties. 
 
 An act of assembly has provided a method to be pur- 
 sued by sureties, who are apprehensive of danger by the 
 delay of the creditor, but it is not pretended that Barker 
 has pursued that method. 
 
 The plea is, therefore, no bar to the action ; and the 
 issue formed upon it is immaterial. If that issue had 
 been found for the defendant, a repleader should 
 [*1G] have been awarded. '''The rejection of the evi- 
 dence was, therefore, no injury to the defendant, 
 (18)
 
 NOVEMBER TERM, 1826. 16 
 
 Barker v. M'Clure. 
 
 inasmuch as the proving of the plea could have legally 
 availed him nothing. 
 
 The replication to the lirst plea is informal. It is not 
 a regular nul tiel record. But the existence of a judg- 
 ment on record, in favor of M'Clure against Prince, Sloan 
 and Barker, is substantially put in issue by it. This issue 
 has not been determined. The record says, the jury 
 " were ivell and truly sworn to try, ^c." What the clerk in- 
 tended to include under the "I'c.," is left to conjecture; 
 and we hope that it is the last time so important a feature 
 in the record shall be left to conjecture. But taking this 
 as it is, and striking out the "&c.," and inserting the word 
 "issues," it can not be contended that the jury were 
 sworn to try any issues but those that were proper for a 
 jury to try. The first issue, depending on matter of rec. 
 ord, could not be supposed to be before the jury. That 
 was to be determined by the Court, on inspecting the rec- 
 ord, if any was produced. The verdict of the jury is a 
 finding for the plaintiff generally, and determined onl}i 
 the second and third issues: and the judgment of the 
 Court is upon the verdict of the jury, and has no refer- 
 ence whatever to the first issue. It remains undetermined, 
 and final judgment should not have been given, until the 
 Court had determined whether there was or was not such 
 a record, as the defendant had alleged in his first plea. 
 
 Per Curiam. — The judgment is reversed with costs. 
 Cause remanded, &c. 
 
 Hall, for the appellant. 
 Tabbs, for the appellee. 
 
 (1) The Court can only look to the judgment itself for the terms under 
 which it was confessed. If the agreement to stay execution be not entered 
 of record, but exist merely by parol, it can not avail against the record. 
 
 To an action on a recognizance of bail, the defendant pleaded that, with- 
 out his privity, the plaintiff had agreed to take security from the princi- 
 pal. This plea, on demurrer, was held to be insufficient at law, on the 
 ground that an agreement by parol can not be pleaded in bar of an obliga- 
 tion by record. Bulteel v. JarroM, 8 Pri. 467. 
 
 Vide, also, the cases of Davey v. Prendergrass and The United States v. 
 
 (19)
 
 ie-17 SUPREME COURT OF IXDIAN'A. 
 
 Barker v. M'Clure. 
 
 Hmvell, referred to in note (2) to Braman v. Howk, Vol. 1 of these Rep. 394. 
 
 (2) In an action by the indorsee against the indorser of a bill, it was 
 held that the defendant was not discharged by the plaintifT's having taken 
 from the acceptor a cognovit giving three weeks' time, which was a period 
 short of that time in which judgment could have been obtained against 
 
 him. Jay v. Warren, 1 Carr & Payne, 532. 
 [*17] *A motion was made for an injunction to restrain the defendant, 
 the administrator of A., from proceeding at law against the plain- 
 tiff, on a bond given to the intestate by B. and the plaintiff as his surety. 
 The facts on which this motion was founded were, that in June, 1817, A. 
 sued B. on the bond, and in the same month took a cognovit from him for 
 the debt, with a stipulation that judgment vshould not be entered up, nor 
 execution issued, until the 1st of August following. This proceeding, it 
 was contended, was a giving of time to the principal, which discharged the 
 surety. Per the Vice Chancellor. — "The principle of discharging a surety 
 by the giving of time by the creditor, is a refinement of a Court of equity; 
 and I will not refine upon it. By the arrangement complained of, time 
 was not given, but the remedy was accelerated." Hulme v. Coles, 2 Si- 
 mons, 12. 
 
 On the 12th of February, pending a suit in which special bail had justi- 
 fied, the defendant gave a cognovit for the payment of the debt by three in- 
 stalments ; the first payable on the 26th of February instant ; the others 
 within two or three months afterwards, with a stay of execution until de- 
 fault. The first instalment not being paid, the plaintiff signed judgment 
 on the 27th of the same month of February. Part of the money was made 
 on a fi. fa. A ca. sa. was issued for the residue, and returned non est in- 
 ventus. Debt was then brought against the bail on the recognizance; and 
 they moved to set aside the proceedings against them. The ground of the 
 motion was, that the bail were discharged by the cognovit. Per Tenterden, 
 C.J. — "We are clearly of opinion, that bail are not discharged by the 
 plaintiff's taking a cognovit from their principal without their consent or 
 knowledge, unless, by the terms of the cognovit, he is to have a longer time 
 for the payment of the debt and costs than he would have it the plaintiff 
 had proceeded regularly in the action." Stevenson v. Roche, 9 Barn. & 
 Cress. 707. 
 
 There is a still later case to the same effect ; in which Bayley, J., says — 
 "It is a well established rule that a cognovit by the principal, without no- 
 tice to the bail, does not discharge them, unless time be given.'to the former 
 beyond that in which the plaintiff would have been entitled to judgment 
 and execution, had he gone to trial in the original cause." Price v. Ed- 
 munds, 10 Barn. & Cress. 578. 
 
 A surety, having been applied to by the solicitors of the creditor for pay- 
 ment, told the principal to see the solicitors and do the best he could with 
 them. The principal, accordingly, went to the solicitors and made an ar- 
 rangement with them for further credit. The surety contended that this 
 arrangement discharged him. But the chancellor held, that, as the ar- 
 
 (20)
 
 NOVEMBER TERM, 1826. 17-18 
 
 M'Gruder v. Russell, Sheriff, &c. 
 
 raiigement was made under the surety's authority, he could not be relieved. 
 Tvson V. Cox, 1 Turner, C. C. 395. 
 
 It appeared that the holder of a bill, of which payment had been refused, 
 informed the drawer of his intention to take from the acceptor security for 
 payment by instalments, and the drawer answered that the holder migh 
 do" as he liked, for he was discharged already in consequence of the want 
 of notice; when in fact he was not discharged-due notice having been 
 eiven Held, that the drawer was not discharged by the plaintiff s giving 
 time under those circumstances, to the acceptor; because his answer was 
 thought to amount to an assent to the plaintiff's taking the warrant of at- 
 torney from the acceptor. Clarke v. Devlin, 3 Bos. & Pul. 363. 
 
 Vide, also, as to the effect of giving time to the principal without the 
 surety's consent. Theobald on Prin. and Sur. 127-129 ; Note (2) to Braman 
 V. Howk, Vol. 1 of these Eep. 394. 
 
 r*l8] *M'Gruder v. Russell, Sheriff, &c. 
 
 Escape-Shekiff of Supreme Court.-A ca. sa. on a replevin-bond in 
 the Supreme Court, was, by the sheriff thereof to whom it was directed, 
 sent to the. sheriff of Jackson county, where the execution-defendant re- 
 sided The sheriff of that county arrested the defendant, and afterwards 
 suffered him to escape. Held, thai, under the statute, the sheriff of the 
 Supreme Court was not liable for the escape. 
 SAME-EEMOVAl..-The sheriff of Jackson county, after the escape, retook 
 the defendant in that county, and brought him to the ^^-t;^^ S^^^^"*' 
 where the Supreme Court sits. Held, that the removal of the defendant 
 out of the county in which he was arrested was an escape. 
 Sheriff of Supreme Court-Service BV-PRACTicE.-The process of the 
 sT'eme Court is, by statute, directed to the sheriff of fat ^of '-h^^ 
 he same Lnd forwards it, with his mandate, to the sheriff of the 
 which it is to be executed. The sheriff of the proper county 
 
 ! <^ouri is, "J ijicivu^^, •£!< s iV. 
 
 receives the same and forwards it, with his mandate, to the *enff of the 
 
 'ZZ LrXrtrthe I^^^JO. supreme C^ur, and the latter re- 
 
 m 
 
 SAMrNV^LilBS^FOR ACS OF Cou.xv SHEKXFF.-The general doctrine 
 Tthat a sheriff is liable for the acts of his deputy But as the au hor- 
 it^ of the sheriffs of the several counties to execute the process of the Su 
 preme Court, is neither conferred by the sheriff of that Court, nor si^ject 
 io be revoked or abridged by him-he is not liable for their conduct. 
 
 ERROR to the Marion Circuit Court. 
 
 Blackford, J.-Debt by M'Gruder against Russell, 
 sheriff of Marion county, for an escape. Plea, mi debet. 
 Special verdict to the following effect:— 
 
 (21)
 
 18-19 SUPREME COURT OF INDIA:N'A. 
 
 M'Gruder v Kussell, Sheriff, Ac. 
 
 M'Gruder, at the May term, 1821, of the Supreme 
 Court, recovered judgment against Tate, and took out an 
 execution of fieri facias. Replevin-bond by Tate with 
 Craio- as surety. Ca. sa. directed to Russell, sheriiF of 
 Marion county, against Tate alone, upon the replevin- 
 bond; Craig having died since its execution. Russell 
 sent the ca. sa. to Stanly, sheriff of Jackson county, 
 where Tate resided. Stanly arrested Tate in October, 
 1825, and sufi'ered him to go at large until the November 
 following, when Elliott, acting for Stanly, again arrested 
 Tate on the ca. sa. and conveyed him to Indianapolis, 
 and offered to deliver him to Russell. Russell refused to 
 receive him ; and, upon a writ of habeas corpus, he was 
 finally discharged. Upon these facts, if the law is in 
 favor of the plaintift', the jury find for him 738 dollars 
 and 13 cents debt, and 158 dollars and 46 cents damages; 
 otherwise they find for the defendant. 
 
 The Circuit Court gave judgment, upon the verdict, in 
 
 1 favor of the defendant. 
 
 [*19] *With respect to the fact of an escape in this 
 case, there is no doubt about that. It is expressly 
 found by the jury, that an escape had been sufiered, 
 before the execution-debtor had been taken from the 
 county of Jackson. But had it been otherwise, the re- ■ 
 nioval of the party out of the county in which he was 
 arrested, was itself an escape. It was like the case of a 
 bailiff" of a liberty, taking the party out of the liberty to 
 the county gaol, and delivering him to the sheriff', which 
 has been adjudged an escape. Boothman v. Earl of Surry, 
 
 2 T. R. 5. 
 
 The only question which the case presents, is, whether 
 an action for this escape can be maintained against Rus- 
 sell, the sheriff* of Marion county? If Russell is the prin- 
 cipal sheriff for the state, as respects the process of the 
 Supreme Court, and the sheriffs of the different counties 
 are merely his deputies; and if the decision of the case is 
 
 (22)
 
 NOVEMBER TERM, 1826. 19-20 
 
 M'Gruder v. Russell, Sheriff, &c. 
 
 to rest strictly upon the -common-law doctrine of prin- 
 cipal and agent ; no doubt can exist but that for the 
 escape suffered by Stanly, Russell alone is responsible to 
 the plaintiff. Cameron \. Reynolds, Cowp. 403. By the 
 statute of 1824, p. 129, which governs this case, the 
 sheriff" of the county where the seat of the state govern- 
 ment is located, is to act as sheriff of the Supreme Court, 
 and the sheriffs of the several counties are to act as his 
 deputies, and are responsible to him (1). It must be 
 remarked, that the authority of the sheriffs of the re- 
 spective counties, is not conferred by the sheriff' of the 
 Supreme Court; nor can such authority when conferred, 
 be revoked or abridged by him. They are elected by 
 the people at stated periods, and act in their own names, 
 as independent officers of their respective counties, not in 
 the name of the sheriff of the Supreme Court in any case 
 whatever. Under these circumstances, the sheriff of the 
 Supreme Court can not, in our opinion, be liable for the 
 conduct of the other sheriff's in the different counties, 
 unless made so by the express words of the act of as- 
 sembly. There is certainly no such direct statutory pro- 
 vision: it would be very unreasonable if there were. 
 
 The law of the state, upon the subject before us, we 
 conceive to be this. The process of the Supreme Court 
 is directed by the clerk, to the sheriff of the Supreme 
 
 Court. He receives and forwards it, with his man- 
 [*20] date, to the sheriff' of the *county where it is to be 
 
 executed. The sheriff of the proper county makes 
 his return to the sheriff of the Supreme Court, from whom 
 he received it; and the latter returns it- to the Supreme 
 Court, from whence it issued. The practice, in this re- 
 spect, may be assimilated to that which prevails in an 
 English county, where there is a bailiff' of a liberty. The 
 w^rit is directed to the sheriff"; he makes out his mandate 
 to the bailiff of the liberty; the bailiff executes it and 
 makes his return to the sheriff; and the sheriff" returns it 
 to his Court. If the writ be a ca. sa., the bailiff" must 
 
 (23)
 
 20-21 SEPREME COURT OF IIs^DIAXA. 
 
 Dukes V. Clark. 
 
 confine the party in the gaol of the liberty ; and should he 
 suffer him to escape, an action lies against the bailiff, but 
 not against the sheriff. 2 Bac. 519. When the sheriff has 
 nothing to do with the- choice of the bailiff or his sureties, 
 he can not, upon any principle of the common law, be 
 made responsible for his acts ; nor can he be considered 
 so liable, by virtue of any statutory provision, where 
 there are no express words to that effect. 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Dewey and Howk, for the plaintiff. 
 
 Fletcher, Rariden and Nelson, for the defendant. 
 
 (1) This statute is repealed. The sheriff of the Supreme Court is now 
 appointed by the Court for the term of three years. He appoints his dep- 
 uties in different parts of the state, and is expressly made responsible for 
 their acts. Stat. 1833, p. 47. 
 
 Dukes v. Clark. 
 
 Slander — Incest — Charge of Fornication -with Wife's Sister. — Slan- 
 der for charging a man with illicit intercourse with his wife's sister. 
 Held, that the words did not contain "a charge of incest, but only of forni- 
 cation or adultery. Held, also, that as, at the time of speaking the words, 
 neither fornication nor adultery was an indictable offence, the words 
 were not actionable. 
 
 ERROR to the Monroe Circuit Court. 
 Scott, J. — Clark filed his declaration in the Circuit 
 Court, in which he charged Dukes with having spoken 
 of him certain slanderous words, which, as he alleges, 
 import a charge of incest. Plea, not guilty; verdict and 
 judgment for the plaintiff. 
 
 On an inspection of the declaration, we find that the 
 
 words, as laid, strongly imply a charge against Clark of 
 
 an illicit intercourse with his sister-in-law. Such; 
 
 [*21] an intercouse, however, * is not incestuous; and 
 
 there are no words laid in the declaration, which 
 
 (24)
 
 NOVEMBER TERM, 1826. 21 
 
 Dukes V. Clark. 
 
 imply a cliarge of the crime of incest. In their strong- 
 est import, they imply no more than fornication or adult- 
 ery. And as, at the time of speaking the words, a man 
 was not liable to an indictment for fornication or adult- 
 ery, we are clearly of opinion that the words, as laid, are 
 not a sufficient foundation for an action of slander. The 
 judgment is, therefore, erroneous, and must be reversed 
 
 Per Curiam. — The judgment is reversed with costs. 
 Naylor, for the plaintiff. 
 Wick, for the defendant. 
 
 (1) Where an action was brought for words, in calling the plaintiff Aereiic 
 and one of the new learning, it was held clearly that it would not lie, being 
 merely a spiritual matter ; for if the defendant was disposed to justify and 
 show in what respect the plaintiff was a heretic, the temporal Court could 
 not judge of it ; and it was not like where the court had cognizance of the 
 principal matter, as where a man was called traitor, or felon. Again, if he 
 had called him adulterer, this being a spiritual matter, an action would not 
 lie for it. But Fitzherbert said, that where things were of a mixed nature, 
 as where a man was said to keep a bawdy-house, he might elect whether he 
 would have his action here or in the spiritual Court. 27 Hen. 8-14 ; 
 Reeves' Eng. Law, 385. The following is the language of Blackstone : In 
 the year 1650, when the ruling powers found it for their interest to put on 
 the semblance of a very extraordinary strictness and purity of morals, not 
 only incest and wilful adultery were made capital crimes; but also the re- 
 peated act of keeping a brothel, or committing fornication, were upon a 
 second conviction made felony without benefit of clergy. But at the Res- 
 toration, when men, from an abhorrence of the hypocrisy of the late times, 
 fell into a contrary extreme of licentiousness, it was not thought proper to 
 renew a law of such unfashionable rigor. And these offences have been 
 ever since left to the feeble coercion of the spiritual Court, according to the 
 rules of the canon law ; a law which has treated the offence of incontinence, 
 nay even adultery itself, with a great degree of tenderness and lenity ; ow- 
 ing, perhaps, to the constrained celibacy of its first compilers. The tempo- 
 ral Courts, therefore, take no cognizance of the crime of the adultery, oth- 
 erwise than as a private injury. 4 Bl. Comm. 65. 
 
 Many offences of private incontinence fall properly and exclusively under 
 the jurisdiction of the ecclesiastical Court, and are appropriated to it. But 
 where the incontinence or lewdness is public, or accompanied with conspir- 
 acy, it is indictable. 
 
 Exposing a party's person to the public view, is an offence contra bonos 
 mores and indictable. See 1 Sid. 158 ; 2 Camp. 89 ; 1 Kep. 620. And by 
 
 (25)
 
 21-22 SUPPvEME COURT OF IXDIAXA. 
 
 Pollard V. Rowland, in Error. 
 
 the vagrant act, 5 Geo. 4, exposing a man's person, with intent to insult A 
 female, is an offence for which the offender may be treated as a rogue and 
 vagabond ; and so is the wilfully exposing an obscene print or indecent ex- 
 liibition, — indeed this would be an indictable offence at common law. 2 
 Stra. 789 ; 1 Barn. Eep. 29 ; 4 Burr. 2527, 2574. And by the same act, G, 
 4, every common i^rostitute wandering in public, and behaving in a riotous 
 and indecent manner, may be treated as an idle and disorderly person 
 within the meaning of that act. 
 
 Publicly selling and buying a wife is clearly an indictable offence. 
 [*22] 3 Burr. 1438. "^Procuring or endeavoring to procure the seduction 
 of a girl seems indictable. 3 St. Tri. 519. So is endeavoring to lead 
 a girl into prostitution. 3 Burr. 1438; 4 Chitt. Bl. C5, note (25). 
 
 Vide SJiields v. Cunningham, Vol. 1 of these Eej). 86, and note (3) ; Henson 
 V, Yeatch, Idem, 371, note (1). 
 
 The living in ojjen and notorious adultery or fornication, or being guilty 
 of open and notorious lewdness or of any grossly scandalous and public in- 
 decency, is now punishable in Indiana by statute. E,. C. 1831, p. 192. 
 And words charging a female with fornication, &c., or charging any person 
 with incest, sodomy, &c., are expressly made actionable by statute. K. C. 
 1831, p. 407. 
 
 Pollard v. Rowland, in Error. 
 
 POLLARD, the holder of two promissory notes against 
 FuUenwider, put them in the hands of Rowland, an at- 
 torney at law, to be collected from the maker. The fol- 
 lowing receipt was given for the notes: "Received of E, 
 Pollard one note on H. FuUenwider for 100 dollars in 
 land-office money, dated 21st Aug. 1820, and due the first 
 of May then next; also one note on said FuUenwider for 
 100 dollars and 37 cents, payable in leather to be deliv-, 
 ered four miles from Bloomington, on or before the 15th 
 'Nov. 1820, to collect. I am to receive the customary fees 
 when the money is collected, and if it is never collected 
 
 then a reasonable fee for my trouble. J. Rowland." 
 
 FuUenwider's residence was forty miles from Rowland's, 
 and in a county in which Rowland did not practice law. 
 Rowland, without Pollard's knowledge, sent the notes for 
 collection to Stephen, an attorney at law, and resident in 
 
 (26)
 
 NOVEMBER TERM, 1826. 22-23 
 
 Meek v. Kuifner. 
 
 the same county with Fullenwider. Stephen, without 
 dehiy, obtained judgment against Fullenwider on the 
 notes; and issued a fieri facias thereon, which was re- 
 turned nuUa bona. A few months afterwards, Stephen, 
 as attorney of Pol bird, received from Fullenwider the 
 amount of the judgment — part in cash and part in prop- 
 erty — which he converted to his own use. 
 
 Held, that Rowland was accountable to Pollard for the 
 acts of Stephen in the business, to the same extent that 
 Stephen himself w^as; and that he could make no defence 
 to the suit of Pollard on the premises, which Stephen 
 
 could not make were he sued by Pollard. 
 [*23] ^Held, also, that though Rowland could not, 
 
 under the circumstances of the case, be made liable 
 to Pollard, for negligence or a w^ant of skill in the man- 
 agement of the business; yet that he was liable to the 
 suit of Pollard in consequence of Stephen's collection of 
 the money due from Fullenwider to Pollard, and of the 
 non-payment of the same by Stephen to Pollard (1). 
 
 (1) There was another point decided in this case, but which, having 
 been since overruled, is not here noticed. 
 
 A suit can not be maintained against an agent for money collected for 
 his principal, nor against an attorney at law for money collected for his 
 client, until after the money has been demanded. Armstrong v. Smith, May 
 term, 1833; Judah v. Dyott, November term, 1833. Post. 
 
 An attorney is not liable for a mistake in a point of law on which rea- 
 sonable doubt may be entertained. King v. Burt, 1 Nev. & Man. 262. 
 
 Meek v. Ruffner. 
 
 Abatement — Death op Plaintiff — Common Law. — To an action of as- 
 sumpsit by two plaintiffs, the defendant pleaded in abatement that one 
 of the plaintiffs had died since the commencement of the suit. Held, 
 that, at common law, the plea was good. 
 
 Same — Code — Practice. — The statute of 1825 changed this law, and au- 
 thorized the suit to proceed in the name of the survivor, if the cause ot 
 action survived, upon a suggestion on record of the other's death 
 
 (27)
 
 23-24 SUPREME COURT OF INDIANA. 
 
 Meek v. Ruffner. 
 
 ERROR to the Jefferson Circuit Court. 
 
 Blackford, J.— Assumpsit by Jacob Baymiller and Jo- 
 seph Ruffner, against John Meek and William H. Hop- 
 kins. Suggestion entered of record, that Hopkins was 
 no inhabitant, as returned by the sheriff. Plea in abate- 
 ment by Meek of the death of Baymiller, one of the 
 plaintiffs, since the commencement of the suit. Ruffner 
 suggested of record the death of Baymiller; and, upon 
 his motion, the defendant was ruled to plead. Plea, non 
 assumpsit. Verdict and judgment for the plaintiff. 
 
 By the common law, if one of several plaintiffs died 
 before final judgment, the suit was thereby abated. Ham. 
 on Parties, 225. The statute of 8 and 9 Will. 3, changed 
 that law, and authorized the suit to proceed in the name 
 of the survivor, if the cause of action survived, upon a 
 suggestion on record of the other's death. Ibid. This 
 statute, however, was never in force here. We 
 [*24] have now *a similar statute ; Stat. 1825, p. 50 ; but 
 the judgment in this case was prior to the exist- 
 ence of that statute. This cause, therefore, must be gov- 
 erned by the common law, and the defendant had a right 
 to plead the death of Baymiller in abatement. The Court, 
 by disregarding that plea and ruling the defendant to 
 plead again, committed an error; and the judgment must 
 be reversed (1). 
 
 Per Curiam.— The judgment is reversed, and the pro- 
 ceedings subsequent to the rule to plead inclusive are set 
 aside, with costs. Cause remanded, &c. 
 
 Nelson, for the plaintiff. 
 
 Douglass, for the defendant. 
 
 (1) 2 Will. Saund. 72, i, note. The reason of the common-law rule is, 
 that the plaintiffs, by joining in the suit, assert a joint right of recovery, 
 which, as such, is destroyed by the death of either of them. Gould's PI. 
 265. Our present statute, which is a copy of the statute of 1825, and sub- 
 stantially the same with the 8 and 9 Will. 3, is as follows: "If, in any ac- 
 tion, there be two or more plaintiffs or defendants, and one or more of them 
 should die, the action shall not be thereby abated, if the cause of such ac- 
 tion survive, but such death being suggested upon the record, the action 
 
 (28)
 
 NOVEMBER TERM, 1826. 24-25 
 
 The Governor, for the use of Gill, r. Stribling and Others. 
 
 shall proceed at the suit of the surviving plaintiff or plaintiffs against the 
 surviving defendant or defendants." R. C. 1831, p. 410. 
 
 The suggestion, when one of the plaintiffs dies pending the suit, is made 
 as follows: At which day, before our said Court, come here as well the said 
 Ruffner, by his said attorney, and the said Meek, by his said attorney, and 
 the said Baymiller comes not; and the said Ruffner hereupon gives the 
 said Court here to understand and be informed, that since the suing out of 
 the original writ in this cause [or, after the last continuance of the plea 
 aforesaid] and before this day, to wit, on, &c., the said Baymiller died, and 
 the said Ruffner then and there survived him ; which the said Meek does 
 not deny, but admits the same to be true. And the said Ruffner, &c., [pro- 
 ceeding in his name alone.] Arch. Forms, p. 561. 
 
 The Governor, for the use of Gill, v. Stribling and 
 
 Others. 
 
 Writ — Void — UNCERTAmxY of Party to be Arrested. — A capias ad re- 
 spondendum was issued against Taylor & Searles requiring bail. Upon 
 this writ the sheriff arrested David S. Taylor, but took no bail and per- 
 mitted him to escape. Held, that the sheriff committed no breach of 
 duty in this discharge of Taylor, although the person intended by the 
 name of Taylor in the writ was David S. Taylor, 
 
 ERROR to the Jefferson Circuit Court. — This was an 
 action of debt brought in the name of the governor, for 
 the use of Gill, founded on a sheriff's bond, in 
 [*25] which action Stribling, the ^sheriff*, and his sure- 
 ties were defendants. Issue was joined upon the 
 performance of the condition of the bond. Verdict and 
 judgment for the defendants. 
 
 Blackford, J. — The facts stated in the declaration, to 
 make out a breach of the condition, are, that Gill took 
 out and delivered to Stribling, as sheriff, a capias ad re- 
 spondendum against Taylor & Searles, requiring bail ; that 
 he intended by Taylor & Searles, David S. Taylor and 
 David Searles ; that the sheriff arrested David S. Taylor, 
 but did not take bail, and voluntarily permitted him to 
 escape. 
 
 (29)
 
 25-26 SUPREME COURT OF INDIANA. 
 
 The Governor, for the use of Newman, Adm'r, v. Shelby, Adm'x. 
 
 These facts constitute no breach of the condition of the' 
 bond. Upon a writ against Taylor, without any other 
 description, the sheriff was not bound to arrest David S. 
 Taylor, nor, after arresting him, was he bound to detain 
 him. It was impossible for the sheriff, from such an im- 
 perfect description, to know that David S. Taylor was in- 
 tended. 
 
 The record, therefore, shows that the plaintiff had no 
 cause of action; and he has no right to complain of the 
 judgment against him (1). 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Nelson, for the plaintiff. 
 
 (1) The party whom the plaintiff intended to arrest must be correctly 
 described in the process ; if he be not, the process is no justification for the 
 arrest of such person. Thus, to trespass for false imprisonment brought by 
 A., the defendant pleaded that E. sued out a lititat against the plaintiff 
 A., therein called by the name of C, directed to the sheriff, &c., authoriz- 
 ing him to arrest C. ; that the sheriff directed his warrant to the defendant, 
 commanding him to take the said A. therein called by the name of G. ; aver- 
 ment, that A. and C. named in the writ and warrant are one and the same 
 person. This plea, or general demurrer, was held to be bad. Shadgelt v. 
 Clipson, 8 East. 328. So, to trespass for taking A.'s goods, the officer plead- 
 ed that he took them under a distringas against B., meaning the said A., 
 to comijel an appearance ; averring that A. and B. were the same person, 
 (A. had not appeared in the original action.) Held on demurrer, that the 
 plea was bad. Cole v; Hindson, 6 T. K. 234. So, where Daniel S. Gris- 
 wold was arrested on process of attachment issued out of the equity side of 
 the Circuit Court of the United States against Samuel S. Griswold, it was 
 held that an action of false imprisonment lay by Daniel S. Griswold against 
 the marshal, his deputy, and the solicitor concerned in the arrest; and 
 that this was so, though Daniel S. Griswold was the person intended. GVis- 
 wold V. Sedgwick, 6 Cowen, 456. S. C. 1 Wend. 126. 
 
 [*26] *The Governor, for the use of Newman, Adminis- 
 trator, V. Shelby, Administratrix. 
 
 Evidence— Judgment Against Co-Obligor. — In a suit against the ad- 
 ministratrix of A. on a bond in which he was surety for B. as sheriff, 
 
 (30)
 
 NOVEMBER TERM, 1826. 26 
 
 The Governor, for the use of Newman, Adni'r, v. Shelby, Adm'x. 
 
 a judginent jjreviously obtained against B. on the same bond is inadmis- 
 sible as evidence for the plaintiff (o). 
 
 Same. — If the administratrix, being sued on the bond, had given notice 
 of the pendency of the suit to B., and there had been judgment against 
 her, that judgment would have been conclusive against B. in a suit 
 against him by the administratrix. 
 
 Same— ScEETY Bouxd by Judgment Agaixst Pkixxipai.. — If a devasta- 
 vit be established against an administrator, his sureties can not after- 
 wards controvert the devastavit (6). 
 
 Same — Instruction as to Insufficiency. — The Court can not give an 
 unqualified charge to the jury, that the evidence is insuflScient to 
 support the action, unless in cases where it would be bound to set aside 
 the verdict if for the plaintiff (c). 
 
 ERROR to the Clark Circuit Court. 
 
 HoLMAN, J. — Debt on a sheriif's bond, brought by the 
 governor for the use of jSTewman, administrator of Han- 
 cock deceased, against M. Shelby, administratrix of E, 
 Shelby, deceased, one of the sureties of Weathers, late 
 sheriff of Clark county. The breach assigned is, that 
 Weathers failed to return an execution in favor of Han- 
 cock against A. Sumner, administratrix of W. B. Sum- 
 ner, deceased, which issued from the clerk's office of the 
 Clark Circuit Court on the 10th of September, 1817, and 
 was placed in the hands of Weathers, as sheriff, for col- 
 lection. And it is averred, that Il^ewman, administrator 
 of Hancock, deceased, recovered a judgment against 
 Weathers for failing to return said execution; and that 
 an execution issued against Weathers on the judgment, 
 and was returned nulla bona. Pleas, first, that no exe- 
 cution — issued from the clerk's office of the Clark Circuit 
 Court in favor of Hancock against A. Sumner, adminis- 
 tratrix of W. B. Sumner, deceased, on the 10th of Sep- 
 tember, 1817 — was ever placed in the hands of Weathers 
 for collection ; secondl}^, that the supposed execution did 
 not contain any command to the sheriff" to make a return 
 thereof. Verdict for the defendant. Motion for a new 
 
 (a) See Post 222, 289; 3 Blkf. 104. (6) See 1 Ind. 105, 538; 5 M. 202. 
 (c) See 42 Ind. 574; 56 Id. 296; 18 Id. 502; 8 Blkf. 256. 
 
 (31)
 
 26-27 SUPREME COURT OF INDIAI^A. 
 
 The Governor, for the use of Newman, Adm'r, r. Shelby, Adm'x. 
 
 trial overruled. Bill of exceptions. Judgment for the 
 defendant. 
 
 The bill of exceptions set forth the whole of the evi- 
 dence, and the instructions of the Court to the jury. 
 
 The plaintiiF introduced the execution-docket 
 [=^27] of the Clark ^Circuit Court, in which the issuing 
 of the execution was entered in the ordinary form, 
 except that the column which contained the species of 
 execution was filled with the words "order of sale." He 
 introduced J. Shelby, the clerk of the Court at the time 
 of making said entry in the execution-docket, who tes- 
 tified — that "Weathers was sheriflT in September, 1817 — 
 that he was in the habit of delivering to Weathers exe- 
 cutions generally — that his practice was to make out ex- 
 ecutions, and put them in a. bundle on the table in his 
 office, where Weathers received them — that when he 
 handed executions to the attorneys or other persons be- 
 sides the sheriff, he noted in the execution docket to 
 whom they were delivered — that it appeared from the 
 docket in this case that no note or mark was made to 
 show that the execution was delivered to any person — 
 that when executions remained in the office, he made a 
 remark to that effect in a column of the execution- 
 docket — that though it was possible this execution had 
 been delivered to some other person, and had never come 
 to the hands of Weathers, yet he concluded he had deliv- 
 ered it to him from an inspection of the execution-docket 
 — that he never issued an execution without inserting a 
 return day — that he never issued but two or three orders 
 of sale, and did not recollect whether they were return- 
 able to a particular day or not — that the execution- 
 docket in this case showed a regular return day — and 
 that the column left for the insertion of the return still 
 remained a blank. 
 
 The plaintiflF, also, offered in evidence the judgment in 
 favor of Newman against Weathers, for failing to return 
 
 (32)
 
 NOVEMBER TERM, 1826. 27-28 
 
 The Governor, for the use of Newman, Adnl'r, v. Shelby, Adm'x. 
 
 the execution mentioned in the clecUiration. This evi- 
 dence was objected to, and the objection sustained. 
 
 The Court instructed the jury, that the evidence was 
 insufficient in law to maintain the action. 
 
 The errors assigned are, first, th'at the Court erred in 
 their refusal to permit the judgment against Weathers to 
 be given in evidence; secondly, that they erred in their 
 instructions to the jury. 
 
 In support of his first position, the plaintiff" relies on 
 the case of KijJ v. Brighain, 6 Johns. R. 158, and on the 
 case of The Associate Judges of Clark Comity v. Wilson 
 (1). Neither of these cases is analogous. In Kip v. Brig- 
 ham, the sheriff" had taken a bond with surety from 
 [*28] a prisoner for the gaol liberties; the ^prisoner 
 escaped ; and the sheriff" was sued for the escape. 
 The sheriff" gave notice of the suit to the prisoner's sure- 
 ties. They attended at the trial and aided the sheriff' in 
 his defence; but judgment was given against the sheriff. 
 In a suit by the sheriff" against the sureties for this escape, 
 the judgment against the sheriff" was held to be conclu- 
 sive against the sureties. In that case, the sureties were 
 the only persons really liable. The sheriff", though liable 
 to the action in the first instance, was entitled to a remu- 
 neration from the sureties for all the damages he sus- 
 tained. The sureties having notice of the first action, 
 and having assisted in the defence, were not afterwards 
 permitted to controvert the facts established by the first 
 judgment. The case of Blasdale v. Babcock, 1 Johns. R. 
 517, goes still further, and fixes the conclusiveness of the 
 judgment against the party ultimately bound, not on the 
 circumstances of his aiding in the defence, but on the 
 fact of his having notice of the first action. See, also, 
 Bender V. Froniberger, 4 Dall. 436; Hamilton v. Cutts, 4 
 Mass. 349. 
 
 But the present case is entirely dissimilar. This is a 
 claim against two co-obligors, who, so far as the plaintiff" 
 is concerned, are subject to the same liabilities. The 
 YoL II.— 3 (33\
 
 28-29 SUPREME COURT OF INDIANA. 
 
 The Governor, for the use of Newman, Adm'r, v. Shelby, Adm'x. 
 
 ju'lgment against the one concludes nothing against the 
 other in behalf of the plaintiff, even if that other had 
 notice of the first action, which, it seems, was not the 
 case in this transaction. If Shelby had been sued alone, 
 and had given notice to Weathers of the pendency of the 
 action, and judgment had been given against him; that 
 judgment, agreeably to the foregoing cases, would have 
 been conclusive against Weathers, in a suit by Shelby 
 against Weathers for the amount he was thus compelled 
 to pay on account oi'the official default of Weathers; but 
 it would have concluded nothing in behalf of the plaintiff 
 against Weathers, 
 
 The case of The Associate Judges of Clark v. Wilson is 
 equally inapplicable. The point there determined is, 
 that when a devastavit has been established against an 
 administrator by a regular judgment, the sureties are not 
 permitted to controvert that fact. The law has placed 
 the sureties of executors and administrators on a diflerent 
 footing from other sureties and co-obligors in general. 
 They are not liable on the administration-bond, until a 
 devastavit is judicially established; and, as the question 
 
 of a devastavit is all that is controverted in the 
 [*29] *suit against the executor or administrator, the 
 
 decision is conclusive not only against the exec- 
 utor or administrator, but against the sureties also. But 
 the sureties of a sherifl" have no such indulgence. They 
 are liable to be sued on the sherifi''s bond in the first 
 instance, either with or without the sheriff, before any- 
 thing has been determined as to the sheriff''s default. 
 Weathers and Shelby are in the same situation as other 
 co-obligors; and the general rule is — that a judgment is 
 evidence between the same parties, on the same subject, 
 and all persons claiming under them; but that it does 
 not extend to strangers, who have no opportunity of ex- 
 amining witnesses, making defence, or appealing to a 
 higher tribunal. 1 Phil. Ev. 222. So that Shelby could 
 
 (34)
 
 NOVEMBER TERM, 1826. 29-30 
 
 The Governor, for the use of Newman, Adm'r, v. Shelby, Adni'x. 
 
 not be bound by the judgment against "Weathers, nor in 
 any manner affected b}' it. 
 
 With regard to the instructions of the Court, it may be 
 observed that the testimony is not conclusively defective. 
 And before a court is authorized to give an unqualified 
 charge to the jury, that the evidence is insuflicieut to 
 support an action or a defence, there should be some ab- 
 solute deficiency in the testimony, which could not be 
 supplied by intendment or inference; as where some im- 
 portant fact was not proved at all. The jury being the 
 constitutional judges not only of facts, but of the weight 
 and extent of the evidence, they should be left in the un- 
 biassed possession of every case, where there is evidence 
 that conduces to prove every material fact in the case. 
 When a party is unwilling to trust his case to a jury, he 
 may demur to the evidence, but where the case is sub- 
 mitted to the jury, he is not entitled to the instruction 
 of the Court in his favor, on the weight and extent of the 
 testimony, in every case where, on a demurrer to evi 
 dence, he would be entitled to a judgment. The Court 
 should not give an unqualified charge to the jury that 
 the evidence is insufiicient, iu every case where it would 
 grant a new trial if a verdict was found contrary to its 
 opinion. Such a charge should be given in such cases 
 only where, if a verdict was found differently, the Court 
 would be absolutely bound by law to set it aside. The 
 testimony in this case is not of such a decisive character, 
 that, if the jury had found a verdict for the plaintiff', the 
 Court would have been absolutely bound to set it aside. 
 
 The point where the testimony seems most defect- 
 [*30] ive, is, as to the nature *of the process that issued 
 
 in the case o^ Hancock v. Sumner. The breach as- 
 signed in the sheriff's bond is for failing to return an 
 execution ; and the process that issued seems to have 
 been an order of sale. There are but a few cases where 
 final process issues under the name of "orders of sale;" 
 and these orders of sale are in the nature of executions, 
 
 (35)
 
 80-31 SUPRExVlE COURT OF INDIANA. 
 
 Elliott and Another v. Ray, in Error. 
 
 and subject to the same regulations ; and where they 
 difter in nothing but name from a venditioni exponas, we 
 see no particular evil that can arise from permitting them 
 to be described by the general term of executions. If 
 this order of sale was not different in its nature from an 
 execution, and we have some reason to believe it was 
 not, the description of it in the declaration is such as to 
 preclude the idea that the defendant was surprised by its 
 being termed an execution, or that he would be liable to 
 another action for the same cause. Taking the whole of 
 the testimony together, we think it far from certain that 
 the jury might not infer from it, the issuing of the exe- 
 cution, the delivering of it to Weathers, and his failure 
 to return it. So that, although it may be extremely 
 doubtful whether the plaintiff" ought to recover or not, 
 yet in order to give him the benefit of a jury trial, and to 
 give the jury the full exercise of their powers, the case 
 should be left with the jur}' to draw their own inferences 
 from the testimony. 
 
 Per Curiam. — The judgment is reversed, and the ver- 
 dict set aside. Cause remanded, &c. 
 
 Naylor, for the plaintiff. 
 
 Howk and Dewey, for the defendant. 
 
 (1) Vide Vol. I. of these Eep. 344. 
 
 [*31] *Elliott and Another v. Ray, in Error. 
 Judgment, Action on (a). 
 
 THE general doctrine is, that an action of debt can not 
 be sustained on a decree in chancery. Jones v. Bradshaw, 
 Cas. Temp. Talb. 223; 3 P. Wms. 401, note f; Hugh v. 
 Bif/rjs, 8 Wheat. 697. 
 
 An action of debt will not lie on the decree of a Court 
 
 (o) See post, 82 ; 3 Blkf. 375 ; 4 /d. 53 ; 6 Id. 337 ; 16 Ind. 46. 
 
 (36)
 
 NOVEMBER TERM, 1826. 31-32 
 
 Elliott and Another v. Kay, in Error. 
 
 of chancery in another state, unless the decree have, by 
 the statute of that state, the force and effect of a judg- 
 ment at law (1). 
 
 If the decree have such effect by statute, that fact 
 should be averred and proved ; the statutes of other states 
 not being noticed here without proof (2). 
 
 (1) It is enacted, by a recent statute, that money due by a final decree 
 of a Court of equity, without this state, may be recovered in an action of 
 debt. Stat. 1833, p. 112. 
 
 (2) \ide Stout v. Wood, Vol. I. of these Kep. 71; Cone v. Cotton, Nov, 
 term, 1827, post. 
 
 The statutes of one of the states, unless pleaded, can not be noticed by 
 the Courts of another state. Walker v. Maxwell, 1 Mass. 104; Pearsall v. 
 Dwi()hi, 2 id. 84; Legy v. Legg, 8 id. 99; Beauchamp v. Mudd, Hardin, 163. 
 To entitle such statutes to judicial notice in another state, they must be 
 proved. Tarlton v. Briscoe, 4 Bibb. 73; Talbot v. David, 2 Marsh. 609; 
 Church v. Hubbart, 2 Cranch. 186; Thompson v. Ketcham, 8 Johns. K. 189; 
 Hosford v. Nichols, 1 Paige, 220, 226. By act of congress, " the acts of the 
 legislatures of the several states shall be authenticated by having the seal 
 of their respective states affixed thereto." Gord. Dig. 940. And it has 
 accordingly been held, that a statute of one state is not admissable in evi- 
 dence in the Courts of another, unless it be so authenticated. Craig v. 
 Brotm, 1 Peters, C. C. K. 352 ; State v. Tivitty, 2 Hawke. 441. But, in Penn- 
 sylvania, copies of the statutes of another state, contained in a book pur- 
 porting to contain the laws of such state, and to be printed by the public 
 printer, are admissible in evidence. Thompson v. Musser, 1 Dall. 462 ; Bid- 
 dis v. James, 6 Binn. 321. So, in Massachusetts. Raynham v. Canton, 3 
 Pick. 293. So, in Vermont. State v. Stade, 1 Chip. 303. The statute- 
 book of another state, printed by a private printer, is not admissible in 
 Connecticut. Bastwick v. Bogardus, 2 Koot, 250. 
 
 The written law of a foreign state must be proved by a copy duly authen- 
 ticated. Clegg v. Levy, 3 Campb. 166. The unwritten law of a foreign 
 state may be proved by the parol evidence of witnesses professing profes- 
 sional skill. Miller v. Heinrick, 4 Campb. 155, per Gibbs, C. J. Vide Ros- 
 coe on Ev. p. 60. 
 
 Copies of the statutes of Great Britain and Ireland prior to the Union, 
 printed by the king's printer, are received mutually as conclusive evidence 
 of the several statutes in the courts of either kingdom. Stat. 41 Geo. 3. 
 
 Particular customs and private statutes, like the statutes of other 
 [•■■32] states, and ••■foreign laws, being no part of the general law of the 
 land, must be set forth in the pleading of the party relying on them. 
 They are pleaded as matters of fact; and their existence may be denied by 
 plea. When denied, they must be proved as other facts are proved. 
 Gould's PI. 56; 1 Chitt. PL 218; Steph. on PI. 252. 
 
 (3T;
 
 32 SUPREME COURT OF INDIANA. 
 
 Doe, on the Demise of Wayman r. Naylor. 
 
 Doe, on the Demise of Wayman v. Naylor. 
 
 Judicial Sale — Rents and Profits — Realty. — By the statute of 1817, 
 real estate might be sold on an execution of fieri facias, without an in- 
 quiry as to the value of the rents and profits, or a venditioni exponas; 
 unless the execution-defendant required an inquest. 
 
 Constitutional Law— Effect of Repeal.— If a statute be repealed, and the 
 repealing act itself be afterwards repealed, the original act is revived (a). 
 
 Judicial SA^le — Realty — Rents. — The statute of 1821 supplied an 
 omission in that of 1817, by authorizing a venditioni exponas and sale 
 of land, where the rents and profits had been offered for sale, but would 
 made a part of the record in some way known to the law (b). 
 
 Same — Act 1817. — A venditioni exponas was not necessary, under the 
 statute of 1817, except in cases where there had been an inquest. 
 
 Same — Act 1810. — By the statute of 1810, an inquest and venditioni expo- 
 nas were necessary without request. 
 
 Deed — Acknowledgment — Effect of. — If a conveyance of real estate 
 appeal's on its face to have been regularly executed, and its execution is 
 attested by subscribing witnesses, it is admissible in evidence without a 
 certificate of acknowledgment ; an acknowledgment being essential to 
 the admission of a deed of record, but not to its validity. 
 
 ERROR to Jackson Circuit Court. — Ejectment for a 
 lot of ground in Brownstown, in which suit Wa^'man is 
 the lessor of the plaintift', and Naylor is the defendant. 
 Plea, the general issue. The plaintiff proved that the 
 defendant, being the owner of the lot in question, became 
 replevin-surety of record for the payment of a judgment 
 against Beatty in favor of Steele & M'Carty. He then 
 after proof of the judgment, offered in evidence an execu- 
 tion of fieri facias against the defendant as the replevin- 
 surety, the sheriff's return of the execution showing a 
 sale of the premises to the lessor, and the sheriff's deed 
 in conformity with the sale. This evidence was objected 
 to by the defendant, and the objection was sustained. 
 Verdict and judgment for the defendant. 
 
 Blackford, J. — It is contended that the execution of 
 fieri facias did not authorize the. sale; but that an inquest 
 
 {«) 47 Id. 283. (6) See 19 Ind. 15. 
 
 (38)
 
 NOVEMBER TERM, 1826. 33 
 
 Doe, on the Demise of Wayman v. Naylor, 
 
 to inquire as to the rents and profits, and a vendi- 
 [*33] tioni exponas, were also ^necessary. By the sec- 
 ond section of the act of 1818, subjecting real and 
 personal property to execution, Stat. 1818, p. 185, an in- 
 quest and venditioni exponas were made necessary, in 
 cases lohere the defendant requested an inquest. That section 
 of the statute of 1818 was repealed in 1820. Stat. 1820, 
 p. 113. This repealing act was itself repealed in 1821; 
 Stat. 1821, p. 36; and consequently the second section of 
 the act of 1818 was revived. The act of 1822, p. 81, is 
 supplemental to the act of 1818, as amended by that of 
 
 1821, Stat. 1821, p. 3, and supplied an omission in the 
 statute of 1818, by authorizing a venditioni exponas and 
 sale, where the rents and profits would not sell for a suffi- 
 cient sum to pay the debt. 
 
 The act of 1818, sec. 2, governs this case, which was in 
 the year 1822; and as the record shows no request for an 
 inquest, none was necessary ; nor was a venditioni exponas 
 necessary, which was only required when there had been 
 an inquest. The fieri facias, therefore, must be consid- 
 ered as having warranted the sale. 
 
 The case of Armstrong v. Jackson d. Elliott, Nov. term, 
 
 1822, cited by the defendant, does not apply (1). That 
 case was governed by the act of 1810, according to which 
 the inquest and venditioni exponas were necessary without 
 request. 
 
 The objection to the fieri facias and return, as evidence 
 in this case, should have been overruled. 
 
 It is contended that the sheriff's deed had not been 
 properly acknowledged, and was therefore inadmissible. 
 The deed appears on its face to have been regularly exe- 
 cuted, and its execution is attested by subscribing wit- 
 nesses. An acknowledgment is necessary for the admis- 
 sion of a deed to record, but is not essential to its valid- 
 ity. The want of a proper certificate of acknowledgment 
 was, therefore, no ground for rejecting the sheriff's deed. 
 
 Per Curiam.— The judgment is reversed, and the pro- 
 ^ (-39)
 
 33-34 SUPREME COURT OF INDIANA. 
 
 Eiley and Another v. Harkness, in Error, 
 
 ceedings subsequent to the issue are set aside with costs. 
 Cause remanded, &c. 
 
 Payne, for the plaintiff". 
 
 Naylor and Nelson, for the defendant. 
 
 (1) Vol. 1 of these Kep. 219. 
 
 [*34] *RiLEY and Another v. Harkness, in Error. 
 Pleadings — Not Verified. 
 
 A SPECIAL plea of non est factum, alleging a material 
 alteration of the bond without the obligor's consent, may, 
 if not sworn to, be rejected on motion ; but it can not be 
 treated as a nullity (1) {a). 
 
 Two pleas in bar to the whole cause of action. An is- 
 sue in law on one and of fact on the other. Verdict for 
 the plaintiff. Held, that final judgment could not be ren- 
 dered on the verdict, until the issue in law was disposed 
 of (2) {h). 
 
 The plaintiff' can not demur and reply to the same 
 plea (3). 
 
 (1) The statute requires plea of non est factum to be sworn to. E.. C. 
 1824, p. 292; R. C. 1831, p. 403. 
 
 (2) Foredora. Several pleas in bar. Replication to the eighth plea, and 
 demurrer to the replication. On the other pleas issues were joined. Judg- 
 ment on the demurrer for the demandant. The demandant, afterwards^ 
 proceeded to trial on the other issues, and obtained a verdict. The entry 
 on the record was as follows: "And hereupon all and singular the prem- 
 ises whereof the said parties have put themselves upon the judgment of the 
 Court, being seen and by the justices here fully understood, and mature de- 
 liberation thereupon had, it appears to the said justices here that the repli- 
 cation of the said Francis Cholmeley, the demandant, to the snid plea of the 
 said Charles Cockerell and Henry Trail, the said tenants, by them eighthly 
 above pleaded, and the matters therein contained, in manner and form as 
 the same are above pleaded and set forth, is sufficient in law for the said 
 
 (a) 6 Blkf. 288. {h) 3 Blkf. 34. 
 
 (40)
 
 NOVEMBER TERM, 1826. 34-35 
 
 Server r. The State, in Error. 
 
 demandant to have and maintain his aforesaid action against them ; 
 but because it is unkncwn. to (he Justices here, ivhether or not the said Charles 
 Cockerell and Henry Trail, the said tenants, uill be convicted on the trial of the 
 said issues above joined between the parties aforesaid, to be tried by the country / 
 therefore, let (he giving of the judgment in this behalf be stayed until the trial of the 
 said last-mentioned issues." 
 
 (Then after stating the venire facias, &c., and that, on the trial of the 
 issues, the Jury found the several issues joined in favor of the demandant, 
 several continuances were entered, and lastly to the 'morrow of the Holy 
 Trinity.) 
 
 '•At which day come here the parties last aforesaid by their respective 
 attorneys aforesaid, and hereupon all and singular the premises being seen, 
 and by the said justices here fully understood, and mature deliberation being 
 thereupon had, it is considered by the said justices that the said Francis 
 Cholmeley do recover his seisin against the said Charles Cockerell and 
 Henry Trail, of the manor and tenements aforesaid, with the appurtenances 
 above demanded. And the said Charles Cockerell and Henry Trail in 
 mercy, &c." Cockerell el al. v. Cholmeley, 10 Barn, and Cress. 564. 
 
 Vide, also, Meylin v. Woodford, Vol. 1 of these Eep. 286 ; Fischli v. Covxin, 
 Ibid. 350; Siuan v. Hary, Xov. term, 1833, post. 
 
 (3) Vide Hair v. Weaver, Vol. 1 of these Eep. 77 ; Steph. on PI. 296. 
 
 p35] * Server v. The State, in Error. 
 
 Perjury — Authority of Officer. 
 
 IN an indictment for perjury, the oath said to be false 
 was chars^ed to have been administered in the Circuit 
 Court by S. C. as deputy clerk. Held, that no proof of 
 the appointment of the deputy clerk was necessary; that 
 in administering the oath, S. C. acted under the superin- 
 tendence of the Court ; and that the oath was as obliga- 
 tory as if it had been administered by one of the judges. 
 
 (41)
 
 35 SUPREME COURT OF INDIANA. 
 
 The State v. Miller. 
 
 The State r. Miller. 
 
 Graxb Jury — Qualifications as to Age. — The circumstances that some 
 of the grand jurors who had found an indictment, were above sixty years 
 of age, is no objection to the indictment. 
 
 vSame. — The statute of 1824 excuses persons above sixty years of age from 
 serving on juries, if they choo.se to claim the privilege; but the party in- 
 dicted can not object to them on that ground. 
 
 ERROR to the Floyd Circuit Court. 
 
 Blackford, J. — Indictment for an assault. Plea in 
 abatement, that two of the grand jurors who found the 
 bill were above 60 years of age. Demurrer to the plea, 
 and judgment for the defendant. 
 
 This plea is founded upon the statute of 1824. R. C. 
 1824, p. 234. That statute requires the county commis- 
 sioners to select persons as jurors, who are between the 
 ages of 21 and 60 years. It is very similar to the statute 
 of "Westminster 2, ch. 38, which expressly provides, that 
 old men above the age of 70 years shall not be put on 
 juries. According to the construction given to the stat- 
 ute of Westminster, such old men if returned may be dis- 
 charged upon their claiming the privilege, but the party 
 has no right to challenge them. 3 Bac. 759. So, with 
 respect to our statute, men above 60 years are excused 
 from serving on juries, if they choose to claim the priv- 
 ilege, but the party has no right to object either by chal- 
 lenge or otherwise, because any such men happen to be 
 upon the jurj'' (1). 
 
 Per Curiam. — The judgment is reversed, and the pro- 
 ceedings subsequent to the joinder in demurrer are set 
 aside, with costs. Cause remanded, &c. 
 
 Whitco77}b, for the state. 
 
 Farnham., for the defendant. 
 
 (1) The act of 1831 says, that nothing therein shall be so construed as to 
 prevent persons over the age of 60 years from serving as grand or petit ju- 
 rors. K. C. 1831, p. 292. 
 
 END OF NOVEMBER TERM, 1826. 
 (42)
 
 [*37] * CASES 
 
 AEGUED AND DETERMINED 
 
 IN THE 
 
 SUPREME COURT OF JUDICATURE 
 
 STATE OF INDIANA, 
 
 AT INDIANAPOLIS, MAY TERM, 1827, IN THE ELEVENTH YEAR OF 
 THE STATE. 
 
 Harrington v. Witherow, in Error. 
 
 Pleading — Diligence — Facts (a). 
 
 A. ASSIGNED to B. a note against C. in payment of 
 a judgment which B. had obtained against A.; and it was 
 agreed, that if the money conld not be obtained by due 
 course of law from C, A. would pay to B. the amount 
 due on the judgment. Held, that in a suit by B. against 
 A., after failure to recover the money from C, an aver- 
 ment in the declaration that the plaintitf had, without de- 
 lay, prosecuted C. to insolvency without obtaining the 
 money insufficient; that due diligence, in the prosecution 
 of a suit, is a matter of law arising out of the facts of the 
 case, which facts must be set out that the Court may de- 
 termine whether they show due diligence or not; that the 
 time when and the place where suit was instituted, the 
 
 (a) See 17 Ind. 545-549 ; 48 Id. 106 ; 13 Id. 357 ; 10 Id. 451. 
 
 (43)
 
 37-38 SUPREME COURT OF INDIANA. 
 
 Eeno and Another i. Hollowell. 
 
 time judgment was obtained, the nature of the execution, 
 the time it issued, and the sheriff's return, should be set 
 forth (1). Held, also, that if the sum to which the plain- 
 tift" was entitled depended on the amount due on the 
 judgment, the Court could assess the damages, after judg- 
 ment for the plaintiff on demurrer, without a jury; and 
 so wherever there are records or other undisputed docu- 
 ments to determine the amount due (2). 
 
 [■•■38] *(1) Vide Hanna v. Pegg, Vol. I. of these Rep. 181, 183. In an 
 action of false imprisonment, the defendant attempted to justify the 
 arrest on a suspicion of forgery, and stated in his plea tliat the plaintiff 
 was srispiciously iiossessed of a note and disposed of it in a suspicions man- 
 ner, and in a suspicious manner left England and went to Scotland. Held, 
 that the plea was too general ; that the causes of suspicion ought to have 
 been set forth in certainty. Mure v. Kage, 4 Taunt. 34. Vide 1 Chitt. PI. 
 217, 241 ; Gould, 53; Harrodv. Barretto, 1 Hall, 155, 164; Starbuck v. Mur- 
 ray, 5 Wend. 148, 159. 
 
 (2) Vide Tannehill v. Thomas, Vol. I. of these Rep. 144, and note. R. C. 
 1831, p. 408. 
 
 Reno and Another v. Hollowell. 
 
 Pleading — Duplicity. — Covenant on an obligation for the payment of 
 money. Plea of payment and a release; which release the plaintiff had 
 since destroyed. Replication, that the plaintiff had not destroyed the 
 release. Held, that the plaintiff, not having specially demurred to the 
 plea for duplicity, as he might have done, was bound to answer all its 
 parts ; and that the replication, therefore, not denying the payment, was 
 insufficient (a). 
 
 ERROR to the Jackson Circuit Court. 
 
 Scott, J. — Hollowell declared against Reno and Moore 
 in covenant on an obligation for a sum of money. The 
 defendants pleaded that they had, before the commence- 
 ment of the suit, paid to the plaintifl' the full amount of 
 the said writing obligatory, together with all interest, 
 which the plaintiff accepted in full satisfaction; and that 
 
 (a) See 12 Ind. 174. 
 
 (44)
 
 MAY TERM, 1827. 38-39 
 
 Harper v. Ragan, Agent, &c. 
 
 the plaintiff executed and delivered to them a release of 
 the said writing or covenant, which release he, afterwards, 
 forcibly wrested out of their hands and possession and 
 tore it in pieces. The plaintiff replied, that he did not 
 forcibly wrest and tear in pieces the said supposed release, 
 as said defendants had alleged. There was a demurrer 
 to this replication, joinder, and judgment for the plain- 
 tiff 
 
 This plea sets up two distinct matters of defence, pay- 
 ment, and a release, either of which alone, if well pleaded, 
 would be a sufficient bar to the action. The plaintiff 
 might have objected to it, by special demurrer, for dupli- 
 city ; but not having done so, he was bound to answer all 
 its parts. 5 Bac. Abr. 444, 5; 1 Chitt. 513; 1 Vent. 272 
 
 This replication does not deny the payment, wdiich is 
 material. It is, therefore, substantially defective, and the 
 
 demurrer ought to have been sustained. 
 [*39] ^Per Curiam. — The judgment is reversed, and 
 the proceedings subsequent to the plea are set aside 
 with costs. Cause remanded, &c. 
 Braman, for the plaintiffs. 
 Nelson, for the defendant. 
 
 (1) If, instead of demurring for duplicity, the opposite party passes the 
 fault by and pleads over, he is, in that case, bound to answer each matter 
 alleged ; and has no right, on the ground of the duplicity, to confine him- 
 self to any single part of the adverse statement. Steph. on PI. 295. 
 
 Harper v. Ragan, Agent, &c. 
 
 Agent — Right of Action by — When. — The defendant had signed a sub- 
 scription paper, promising to pay a certain sum of money towards defray- 
 ing the expenses of erecting the public buildings at Connersville, pro- 
 vided a new county should be established, and Connersville be made the 
 seat of justice — the money to be paid into the hands of any person whom 
 the board of commissioners of the new countv should authorize to receive 
 
 (45)
 
 ^0-40 srPREME COURT OF INDIAXA. 
 
 Harper v. Kagan, Agent, &c. 
 
 it. Held, that the county agent, having no legal or beneficial interest in 
 the contract, could not sue upon it in his own name (a). 
 
 Same. — If the agent had been specially appointed by the commie^ionerB to 
 receive the money, M-hich was to be paid to any person thus appointed, 
 that circumstance would not have authorized a suit in his own name. 
 
 Semble, that if one person promise another for the benefit of a third, tha 
 third person may sue. 
 
 ERROR to the Fayette Circuit Court. 
 
 Blackford, J. — Ragan, as agent of the county of Fay. 
 ette, brought au action of debt against Harper, upon a 
 subscription paper, in which the defendant promised in 
 writing to pa}' 75 doUars towards defraying the expenses 
 of erecting the public buildings at Connersville, provided 
 a new county should be established, and Connersville be 
 made the seat of justice: the money to be paid into the 
 hands of any person whom the board of commissioners 
 of the new county should authorize to receive it. The 
 declaration avers the establishment of the new county of 
 Fayette, and of the seat of justice at Connersville; also, 
 the appointment of the plaintiff, by the commissioners, 
 agent for the county, and notice of the premises to the 
 defendant. General demurrer to the declaration, and 
 judgment for the plaintiff below. 
 
 The only question, presented b}' the parties in 
 ["^"40] this cause, for *our consideration is, whether the 
 agent of the county is the proper person to sue on 
 this instrument of writing. There is nothing in the stat- 
 ute authorizing the appointment of a county agent,'which 
 gives him specially any authority to sue, in his own name, 
 for a debt of this kind due to the county. The right, 
 therefore, of Ragan, as agent of the count}', to sue in his 
 own name in this case, depends upon general principles ; 
 and to determine it correctly, we must ascertain whether 
 he has such an interest in the contract, as justiiies the 
 suit. His being general agent of the county merely, will 
 not do. Agents and attorneys, authorized to collect debts 
 
 («) 3 Blkf. 339 ; 5 Jd. 69 ; 6 Id. 317 ; 3 Ind. 373, 508. 
 
 (46)
 
 MAY TERM, 1827. 40-41 
 
 Harper v. Kagan, Agent, &c. 
 
 due to others, have not the interest of the contract, and 
 can not sue in their own names, but only in the names of 
 their principals. Jones v. Barfs Executors, 1 Hen. & 
 Munf. 471 ; Gann v. Canti/ie, 10 Johns. Rep. 387. 
 
 Supposing him to have been specially appointed by the 
 commissioners to receive this money, which was to be 
 paid to any person thus appointed, that circumstance, it 
 is conceived, would not authorize this suit. In that case, 
 Ragan would be considered only as the medium through 
 which the money was to be paid to the county, not as the 
 person beneficially interested. To this, the case of Pig- 
 gott V. Thompson, 3 Bos. & Pull. 147, may be cited. There 
 certain persons were appointed, by act of parliament, 
 commissioners for draining lands, and were empowered 
 to erect toll gates. They let the tolls to a person who 
 signed this instrument of writing: "June 23rd, 1798. 
 Now to be let the several tolls of Burnt Fen first district, 
 with the toll house. June 23rd, 1798—1 do hereby ac- 
 knowledge to have hired the above tolls for three years 
 by private contract, at one hundred and forty -five pounds 
 per annum, to be paid to the treasurer of the commission- 
 ers at his house in Ely, by twelve equal monthly pay- 
 ments in each year: the first payment to begin and be 
 made on the 24th day of July next." The treasurer, upon 
 this contract, brought suit. At the date of the contract, 
 and at the time of the trial, he was treasurer to the com- 
 missioners, appointed under the act of parliament, with 
 an annual salary. The Court held, that the action would 
 not lie in the name of the treasurer; and that the com- 
 missioners alone could sue; that the contract was with 
 them, to pay to their treasurer, not for his, but for their 
 
 benefit. 
 [*41] The same doctrine has been heretofore recog- 
 nized by this Court. A board of commissioners sued 
 a county collector for not paying over the taxes collected. 
 It was objected, that as it was the duty of the collector 
 to pay the taxes to the county treasurer, the treasurer 
 
 (47)
 
 41 SUPREME COURT OF INDIANA. 
 
 Harper v. Ragan, Agent, &c. 
 
 not the commissioner, should have sued. The Court 
 held the action to be rightly brought. The money being 
 due the county, the commissioners, by the express words 
 of the statute, were the proper persons to sue. Board of 
 Commissioners of Gibson County v. Harrington, November 
 term, 1823 (1). 
 
 In the case now before the Court, the defendant prom- 
 ised to pay a certain sum, into the hands of any person 
 whom the commissioners should appoint to receive it 
 towards defraying the expenses of erecting the publie 
 buildings, upon certain conditions, the performance of 
 which is averred. We can not perceive how the legal or 
 beneficial interest of this promise can be supposed to 
 exist in the county agent. It is not the case of one per- 
 son promising another for the benefit of a third : there 
 perhaps the third person may sue, though the cases are 
 not uniform as to that ; nor does it come within the ex- 
 ceptions to the general rule like some cases of factors, 
 brokers, &c. No consideration passed from the plaintiff, 
 no promise was made to him, nor to another for his ben- 
 efit. It is merely the case of a conditional promise to 
 pay to the county, through the medium of some person 
 to be authorized to receive it, a certain sum of money, 
 not for the benefit of that person, but for the exclusive 
 benefit of the county. 
 
 The Court is therefore of opinion, that this is a con- 
 tract, if valid, in which the county agent has no interest, 
 legal or beneficial, which, upon general principles, can 
 enable him to sue in his own name; and as he is not spe- 
 cially authorized by the statute thus to sue in such cases, 
 it follows that this action, in the name of the agent can 
 not be supported. 
 
 Per Curiam. — The judgment is reversed with costs. 
 
 Wick, for the plaintiff. 
 
 Smith, for the defendant. 
 
 (1) Vol. 1 of these Rep. 260. 
 
 (48)
 
 MAY TERM, 1827. 42 
 
 Harrison and Another v. Ferguson. 
 
 p42] ^Harrington and Another v. Ferguson. 
 
 Bastardy — Execution — Practice. — An order by the Court of tiliation 
 and bastardy, may be enforced by scire facias or debt on the order against 
 the putative father, or on the recognizance against those who have en- 
 tered into it, in the name of the state, on the rehition of the party enti- 
 tled (a). 
 
 Same — Description of Writ. — The scire facias or declaration, in such 
 case, must describe the cause of action of the party claiming, show by 
 what authority he has had the care of the child, and why he is entitled 
 to the benefit of the order for maintenance (6). 
 
 APPEAL from the Gibson Circuit Court. 
 
 Blackford, J. — This was a motion by Ferguson, in the 
 Circuit Court, for judgment against Charles & William 
 Harrington. There was no process nor pleadiugs ; and 
 of course, there is no description on the record, by the 
 plaintiff, of his cause of action. It appears, by a bill of 
 exceptions, that Ferguson produced an order of the same 
 Court of September term, 1818, against Charles Harring- 
 ton, to the followino; effect: That he was the father of a 
 bastard child; that he should pay the mother 30 dollars 
 in 30 days, and pay annually for the six succeeding years, 
 20 dollars, as the Court should direct, for the mainte- 
 nance of the child, and enter into recognizance, with 
 surety, for the performance of the order. It appears 
 further, that a recognizance was entered into by William 
 Harrington. The Circuit Court, upon this motion, with 
 this order before them, gave judgment against Charles 
 Harrington, putative father, and William Harrington, 
 the recognizor, for 120 dollars, the amount of the annual 
 payments mentioned in the order. 
 
 The mode of proceeding in cases of bastardy, until the 
 order by the Court of filiation and bastardy, is stated in 
 Woodkirk v. Williams, Nov. term, 1820 (1). This case 
 presents the question, as to the mode of enforcing the 
 order. That may be done by scire facias or debt, upon 
 
 (a) 4 Blkf. 316 ; 7 Blkf. 558. (6) 5 Blkf. 166. 
 
 YoL II.— 4 (49)
 
 42-43 SUPREME COURT OF INDIAIs^A. 
 
 Harvey v. Crawford and Others. 
 
 the order, against the putative father, or upon the recog- 
 nizance against those who have entered into it, in the 
 name of the state, on the relation of the party entitled. 
 The scire facias, or declaration, must describe the cause of 
 action of the party claiming, show by what authority he 
 has had the care of the child, and why he is entitled to 
 the benefit of the order for maintenance. An op- 
 [*43] portunity is thus given to *the defendants to make 
 their defence, if they have any, and the cause pro- 
 ceeds in the ordinary mode. That an action of debt lies 
 on such an order, made by justices of the peace, and that 
 the order is conclusive against the defendants, whilst un- 
 reversed, is decided in Wallsworth v. Mead, et al., 9 Johns. 
 R. 367. 
 
 Per Curiam. — The judgment is reversed with costs. 
 
 Hall, for the appellants. 
 
 Howk, for the appellee. 
 
 (1) Vol. 1 of these Kep. 110. 
 
 Harvey i'. Crawford and Others. 
 
 UsuKY — Belief — Equity Practice. — The payee of a note, who has sued 
 the makers, can not demur to a bill in Chancery, filed by the latter, be- 
 cause it charges the note to be usurious and prays a discovery, if the 
 complainants have brought the principal and legal interest into Court. 
 
 Interest — Calculation. — If a new contract be made respecting money 
 previously lent and a new security be given, the interest should be cal- 
 culated up to the time of the new contract and added to the principal ; 
 but this calculation is not to be made at every agreement for forbearance 
 of payment, where no change is made in the securities. 
 
 Same — Principal — Application of Payment. — Whenever a sufficient 
 payment is made, the interest must be first discharged ; but if the pay- 
 ment be less than the interest, the balance of the interest does not become 
 principal (a). 
 
 Costs — Adjudication of. — The bill in the above-named cause having been 
 taken for confessed and a decree rendered enjoining the payee's pro- 
 
 (a) See 3 Blkf. 18, 347 ; 16 Ind. 147 ; 28 Id. 488 ; 57 Id. 248. 
 
 (50)
 
 MAY TERM, 1827. 43-44 
 
 Plarvey v. Crawford and Others. 
 
 ceedings at law, held, that costs might be given to complainants. Held, 
 also, that the decree should secui-e to the payee his costs in the suit at 
 law. 
 
 ERROR to the Wayne Circuit Court. 
 
 HoLMAN, J. — Harvey brought an action of debt against 
 Crawford and others on a promissory note. The defend- 
 ants tiled a bill in chancery, charging that the note was 
 given on an usurious contract; bringing into Court the 
 money said to be due for principal and interest ; and pray- 
 ing a discovery of the usury, an injunction of the pro- 
 ceedings at law, and relief. To this bill Harvey demur- 
 red. The principal causes of demurrer were, first, that 
 the disclosure of usury, if any, would subject him to a 
 criminal prosecution ; and, secondly, that all the money 
 due is not brought into Court. The first of these causes 
 is removed by the bringing of the principal and interest 
 
 into Court. The only penalty for usury, by the act 
 [*44] of assembly, that was in force *at that time is the 
 
 forfeiture of the interest. Stat. 1818, p. 87 (1). If 
 the defendant can not answer without confessing usury, 
 he may take the money out of Court, and thereby receive 
 all to which he is equitably entitled ; and by failing to an- 
 swer will subject himself to no forfeiture. K he can deny 
 the charge of usury, he is at liberty to do so. So that in 
 either case he is subjected to nothing but the loss of an 
 illegal advantage. On the second ground of demurrer, 
 we discover that the complainants and the defendant have 
 adopted dififerent modes of calculating interest. The true 
 method of calculation we conceive to be this : that where- 
 ever a new contract is made about the money loaned, and 
 a new note, or new security given, the interest should be 
 calculated up to the time of such new contract, and added 
 to the principal. But that this calculation is not to be 
 made at every agreement for further forbearance of pay- 
 ment, if no change is made in the securities. And that 
 whenever a payment is made, the interest must be dis- 
 
 (51)
 
 44-45 SUPREME COURT OF mDIANA. 
 
 Harvey v. Crawford and Others. 
 
 charged first ; but if a sum less than the interest is paid, 
 the balance of the interest does not thereby become prin- 
 cipal (2). Adopting this mode of calculation, we perceive 
 that the sum paid into Court, on the most exact calcula- 
 tion, will cover all the principal and interest really due, 
 except about two dollars; a sum too small, in a long and 
 often varied contract for several hundred dollars, to au- 
 thorize the reversal of a decree. 
 
 When the demurrer in this case was overruled, the de- 
 fendant refused to answer; the bill was taken for con- 
 fessed; and the Circuit Court decreed a perpetual injunc- 
 tion of the proceedings at law, and gave the complainants 
 a decree for costs. As this was a matter originally cog- 
 nizable in a Court of chancer}', and was not taken into a 
 Court of law by the complainants, there was nothing in 
 it to prevent the Court of chancery from granting the 
 necessary relief. Costs in chancery are generally a mat- 
 ter of discretion ; and we do not discover but that the 
 whole circumstances of this case may warrant the decree 
 for costs. 
 
 One thing however remains. Harvey had proceeded 
 at law to recover a sum of money for which he had a 
 legal demand. The principles of equity would not inter- 
 fere to stay his further proceedings until the sum really 
 due was paid into Court. The costs at law were there- 
 fore a matter of right ; and nothing has transpired in 
 the proceedings in chancery to show that he was 
 [*45] *not equitably entitled to them; for the same rule 
 that requires the complainants to do equity, by 
 bringing the principal and legal interest into Court, 
 would require them to pay the costs that had already 
 accrued in attempting to recover the mone}' thus admit- 
 ted to be due. 
 
 Per Curiam. — The decree, except so much thereof as 
 perpetually enjoins the recovery of the costs at law, is 
 affirmed. That part of the decree, which enjoins the re- 
 
 (52)
 
 MAY TERM, 1827. 45-46 
 
 Capp I'. Gilman. 
 
 CO very of those costs, is reversed. Cause remanded, &c. 
 Rariden, for the plaintiff. 
 Smith, for the defendants. 
 
 (1) R. C. 1824, pp. 227, 228, accord. In 1831 this law was changed, and 
 the parties were authorized to make a written agreement for the payment 
 of interest at any rate they pleased. In the absence of any such agreement, 
 6 per cent, per ann. was the legal rate. R.. C. 1831, p. 290. In 1833 the law 
 was again changed. The legal rate of interest, if there be no written agree- 
 ment on the subject, is now 6 per cent. per. ann. The parties may agree in 
 writing for a higher rate, not exceeding 10 per cent, per ann. The penalty, 
 on conviction by ^presentment or indictment, for receiving more than 10 per 
 cent, per ann. is a fine to the state, for the use of the county seminary, in 
 double the amount of the excess of interest above 10 per cent, per ann. so re- 
 ceived. Stat 1833, p. 43. 
 
 (2) Accord, Dean v. Williams, 17 Mass. 417; Wasson v. Gould, May term, 
 1832, post. 
 
 Capp v. Gilman. 
 
 Judgment — Pleading. — In an action on a judgment, profert of the record 
 is unnecessary ; the provt patet per recordum is sufficient even on special 
 demurrer. 
 
 Practice — Oyer — Record. — Oyer of a record is never granted (a). 
 
 Pleading— Real Party Plaintiff. — If the plaintiff name himself as ad- 
 ministrator, in a suit on a judgment recovered in his own name on prom- 
 ises made to himself, no profert of the letters of administration is neces- 
 sary ; the word administrator may be considered as surplusage, or as a 
 descriptio persona? (b). 
 
 Pleading — Assumpsit. — The declaration, in such case, may be in the de- 
 bet and detinet. 
 
 Same — Foreign Judgment. — If the county and circuit, in which an action 
 on the judgment of a Court in another state is brought, be named in the 
 margin of the declaration, no objection can be made for want of a venue (c). 
 
 ERROR to the Franklin Circuit Court.— This was an 
 action of debt. The declaration, so far as respects the 
 points noticed by the Court, is as follows : Frank- 
 [*46] lin Circuit, Franklin county, *viz. Benjamin I. Gil- 
 man, deceased, complains of Jacob G, Capp, &c., 
 
 (a) See post 82 ; 5 Blkf. 360. (6) See 9 Ind. 260. (c) See 4 Blkf. 179, 
 
 (53)
 
 46 SUPREME COURT OF INDIANA. 
 
 Capp V. Gilman. 
 
 of a plea that he rendered unto him the sum of 686 dol- 
 lars, which to him he owes and from him unjustly de- 
 tains. For that whereas the said plaintiff' heretofore, 
 to-wit, at the term of August, 1824, in the Court of Com- 
 mon Pleas of Hamilton county and state of Ohio, by the 
 judgment of said Court, recovered against the said Jacob 
 G. Capp the sum of, &c., which was adjudged to the said 
 plaintiff", in the said Court, for his damages which he has 
 sustained, as well by reason of the not performing cer- 
 tain promises and undertakings to the said plaintiff' by 
 the said defendant then lately made, as for his costs, &c., 
 whereof the said Jacob G. Capp is convicted, as by the 
 record and proceedings thereof now remaining in the said 
 Court of Common Pleas of Hamilton county, state of 
 Ohio, more fully appears, &c. ; which said judgment still 
 remains in full force, &c. Whereby an action, &c. Yet, 
 &c. To the damage, &c. To this declaration the defend- 
 ant specially demurred. The causes of demurrer are, Ist, 
 there is no profert of the record on Avhich the action is 
 founded ; 2dly, there is no profert of the letters of admin- 
 istration ; 3d]y, the cause of action is not within the juris- 
 diction of the Court; 4thly, the suit is in the debet and 
 detinet. 
 
 Judgment on the demurrer for the plaintiff' as admin- 
 istrator as aforesaid. 
 
 HoLMAN, J. — The action was brought by Gilman in the 
 Franklin Circuit Court, on a judgment obtained in the 
 Court of Common Pleas of Hamilton county, state of 
 Ohio. The declaration states the recovery of the judg- 
 ment, as by the record thereof, now remaining in the said 
 Court of Common Pleas, more fully appears. This- is suffi- 
 cient even on special demurrer. Oj^er of a record is 
 never granted. Bex v. Amery, 1 T. R. 149 (1). The sec- 
 ond and fourth causes of demurrer are removed b}' a 
 slight view of the whole declaration. The plaintiff' n^mes 
 
 (54)
 
 MAY TERM, 1827. 46-47 
 
 Capp r. Gilmaii. 
 
 himself as administrator unuecessarily. He sues on a 
 judgment recovered in his own name, on promises made 
 to himself. The word administrator may therefore be 
 considered as surplusage, or as a descriptio person ce. The 
 same answer may be given to the objection, the judg- 
 ment is rendered for the plaintiff as administrator (2). 
 
 The only point on which we have hesitated, is 
 [*47] the third *cause of demurrer; the want of a 
 venue. The necessity of a venue is to give juris- 
 diction, and to show from whence the jury are to come. 
 Here the declaration contains '^ Franklin county and cir- 
 cuit,'' as a marginal venue, and proceeds to show that the 
 defendant was indebted to the plaintiff, by virtue of a 
 judgment of a Court of record in the state of Ohio. By 
 virtue of this judgment, the defendant became indebted 
 to the plaintiff, and might be sued in any place where he 
 could be found. Franklin Circuit Court therefore had 
 jurisdiction of the case; as it must be intended that, if 
 h.e was found in the Franklin Circuit, he was there in- 
 debted to the plaintiff. This is rendered as certain as if 
 the marginal venue was repeated, or a reference made to 
 it, in the body of the declaration. The Court in which 
 the judgment was obtained is properly set out, and to 
 have added under a videlicit that it was obtained in the 
 Franklin Circuit was unnecessar}^, as the record is not 
 tried by a jury but by the Court. We are therefore of 
 opinion that the venue in the margin is at any rate suffi- 
 cient. See 1 Chitt. on PI. 269, 281 (3). 
 
 Per Curiam. — The judgment is affirmed, with 5 j^er cent. 
 damages and costs. 
 
 Caswell, for the plaintiff. 
 
 (1) Vide Harlow v. Bechtle, Vol. 1 of these Eep. 237. 
 
 (2) Vide Savage v. Meriam, Vol. 1 of these Eep. 176 and note ; Helm v. 
 VanVleel, Ibid. 342. 
 
 (3) The county in the margin of the declaration held a sufficient venue, 
 on special demurrer. Duncan v. Passenger, 8 Bing. 355. 
 
 (55)
 
 47-48 SEPREME COURT OF INDIANA. 
 
 Mills and Another, Administrators, v. Cuykendall, Administrator. 
 
 Mills and Another, Administrators, v. Kuykendall, Ad- 
 ministrator. 
 
 Bill of Exchange — Payable out of certain funds. — A bill drawn on 
 an administrator in these words, " Please to settle 80 dollars out of my 
 part of the estate, with Nathan Harness, and this my order shall be your 
 receipt for the same," — is not a valid bill of exchange ; being payable 
 only out of a particular fund. 
 
 Same — Pleading. — A declaration against the acceptor of such a bill, de- 
 pending alone for its support upon the bill and acceptance, contains no 
 cause of action, whether the acceptance be absolute or conditional. 
 
 [•■■48] Administrator^ — Promise of — Liability of Estate. — *The ad- 
 ministrator, on whom the above-named bill was drawn, promised 
 the holder if he would retain the bill, it should be paid whenever a cer- 
 tain farm should be sold ; Held, that as the consideration of this promise 
 arose subsequently to the intestate's death, no action would lie against 
 the administrator on the promise, so as to charge the estate of the intes- 
 tate. 
 
 Same — Pleading — Statute of Frauds. — The promise of an administra- 
 tor, to pay a debt of the intestate, need not be averred in the declaration 
 to be in writing ; the statute of frauds applying to the proof and not to 
 the declaration (a). 
 
 APPEAL from the Knox Circuit Court. 
 
 Blackford, J. — This was an action of assumpsit by 
 Kuykendall, administrator of Nathan Harness, against 
 Mills and Harness, administrators of Adam Harness. 
 The declaration contains two counts. In the first count, 
 the plaintiff avers that Michael Harness, one of the heirs 
 of Adam Harness, deceased, being entitled to 100 dollars 
 from the defendants, administrators of the estate, drew an 
 order in writing "for 80 dollars in favor of Nathan Har- 
 ness, for value received from him, directed to the defend- 
 ants, administrators, as follows: "Please to settle 80 dol- 
 lars out of my part of the estate, with Nathan Harness, 
 and this my order shall be your receipt for the same." 
 The plaintilf further avers that his intestate, Nathan Har- 
 ness, presented this order to the defendants, administra- 
 
 («) See 8 Blkf. 105-108 ; 3 Ind. 213 ; 6- Id. 53 ; 21 Id. 433 ; 8 Blkf. 24 ; 4 
 Ind. 488 ; 27 2d. 277 ; 45 Id. 576. 
 
 (56)
 
 MAY TERM, 1827. 48-49 
 
 Mills and Another, Administrators, v. Kuykendall, Administrator. 
 
 tors ; and that they accepted the same by parol. By means 
 whereof they became liable, &c., and promised to pay, 
 &c. The second count is the same Avith the first, except 
 that it alleges — that the defendants, administrators, re- 
 fused to accept the order, and requested the payee to keep 
 it, promising to pay it if they should sell a certain farm 
 belonging to the estate ; that the payee did keep the or- 
 der; and that the defendants had sold the farm. By 
 means whereof the administrators, &c,, became liable, &c., 
 and in consideration thereof, promised, &c. To the de- 
 claration, there is the common conclusion that the de- 
 fendants, though often requested, &c., have not paid, &c. 
 The defendants pleaded non assumpserunt, and the plain- 
 tifi" joined issue. The cause was tried, and the jury found 
 for the plaintiff below 80 dollars in damages. The de- 
 fendants moved for a new trial, which was overruled ; 
 and the Court rendered judgment on the verdict against 
 the defendants below, de bonis propriis. 
 
 The refusal of the Court to grant a new trial in this 
 case is one of the errors assigned. That point mu§t be 
 laid out of the case. The grounds of the motion 
 [*49] for a new trial are not *before us, and we have no 
 means of determining as to the propriety of the de- 
 cision. Copies of an affidavit of the discovery of new evi- 
 dence, and of a dedimus and deposition, are sent up by 
 the clerk, but hone of these papers are made matter of 
 record, by bill of exceptions or otherwise; and we are 
 therefore obliged to pass them by without notice. Noth- 
 ing appearing to the contrary on the record, we are bound 
 to presume that the motion for a new trial was correctly 
 overruled. 
 
 This cause turns altogether upon the question, whether 
 the declaration contains a sufficient cause of action? 
 
 The first count, in substance, is upon the absolute ac- 
 ceptance of a bill of exchange. The writing accepted is 
 set out in haec verba in the declaration. It is a draft by 
 an heir upon the administrators to pay a certain sum out 
 
 (57)
 
 49-50 SUPREME COURT OF INDIANA. 
 
 Mills and Another, Administrators, v. Kuykendall, Administrator. 
 
 of his part of the estate. The bill is not drawn upon tlie 
 general credit of the drawer, but is only a request to pay 
 out of a ijarticular fund. It is not therefore a bill of ex- 
 change. To this there are many authorities. Thus, a 
 bill as follows, "Sir, you are to pay Mr. Herle £1,945 
 out of the money in your hands, belonging to the propri- 
 etors of the Devonshire Mines, being part of the consid- 
 eration-money for the purchase of the manor of West 
 Buckland," was held to be no bill of exchange, because it 
 was onl}^ payable out of a particular fund. Jenny v. Herle, 
 Ld. Raym. 1361. See also, Dmvkes v. Lord de Loraine, 2 
 Bl. Rep. 782; 3 Wils. 207; Chitt. on Bills, 56. The first 
 count therefore is bad. It depends alone for support 
 upon the acceptance of an instrument of writing, which 
 of itself contains no cause of action. 
 
 With respect to the second count. In that is set out a 
 conditional acceptance of the same bill that is described 
 in the first count. The averment is, that the administra- 
 tors refused to accept the writing, but requested the payee 
 to keep it, and promised that if they should sell a certain 
 farm of the estate, they would pay the money in the 
 writing mentioned ; that the payee accordingly did keep 
 the order, and that the administrators have sold the farm. 
 This allegation, so far as the validity of the declaration 
 depends upon the instrument of writing as a bill of ex- 
 change, can not have a greater effect than the absolute 
 acceptance of the bill averred in the first count. By the 
 terms of the bill, the payment depends upon the sufii- 
 
 ciency of a particular fund, and it is therefore, as 
 [*50] has been already ^observed, of no validity. Its 
 
 acceptance, whether absolute or conditional, can 
 not be declared on as a cause of action. To the second 
 count, so far as it is founded on the bill, the following 
 passage from Chitty on Bills is applicable : " When a bill 
 has been drawn on an agent requesting him to pay a sum 
 of money out of a particular fund, though we have seen 
 that such an instrument will be wholly void as a bill of 
 
 m
 
 MAY TERM, 1827. 50 
 
 Mills and Another, Administrators, v. Kuykendall, Administrator. 
 
 exchange, because the payment of it depends upon a con- 
 tingency ; yet if the drawee promises to pay the amount 
 when he shall receive funds, and the holder in conse- 
 quence retains the bill, the amount, when received will 
 be recoverable from the drawee under the common count 
 for money had and received.'' He cites this case : In as- 
 sumpsit, the first count was against the defendant as the 
 acceptor of a bill of exchange, drawn by Admiral Smith 
 on the defendant his agent ; the others were the money 
 counts. The defendant was a navy-agent, and the bill 
 was as follows : Out of my half-pay, which will become 
 due on the 1st of January, pay to Stephens £15. This 
 was brought to the defendant, who said he- had then no 
 money of Admiral Smith's in his hands, but that he 
 would pay it out of the admiral's money when he re- 
 ceived it. The defendant objected to the count on the 
 bill as it appeared to be not a bill of exchange, it being 
 drawn on a particular fund, and not payable generally, 
 which was necessary to constitute a legal bill of ex- 
 change. This count was abandoned by the Solicitor- 
 General, who put the case on the count for money had 
 and received; and on that count had judgment. Chitt. 
 on Bills, 252. The second count therefore in this decla- 
 tion, so far as it is founded on the bill, is equally objec- 
 tionable with the first count. 
 
 If the second count be considered as depending for its 
 support, not on the bill and its conditional acceptance, 
 but upon the promise stated to have been made by the 
 defendants to pay Nathan Harness the debt due to him 
 from Michael, in consideration of the keeping of the bill 
 by Nathan at -the defendant's request, until the farm 
 should be sold — we think that ground will not support 
 the count. There, the consideration of the promise arises 
 subsequently to the intestate's death, and therefore if 
 sufficient to support the promise, it can only charge the 
 defendants personally, and can only support an action 
 
 (59)
 
 50-51 SUPREME COURT OF INDIANA. 
 
 Mills and Another, Administrators, v. Kuykendall, Administrator. 
 
 against them in their individual capacities (1). 
 [*51] This is not such an action. It *is against the de- 
 fendants as administrators. They are not merely 
 named in such a way, that the term administrators may 
 be considered a descriptio personarum. On the contrar}', 
 the defendants are charged throughout in their repre- 
 sentative characters. The whole case shows, that the 
 object of the plaintiff" was to charge the estate of the de- 
 ceased, by obtaining a judgment against the administra- 
 tors de bonis intestati. The promise of administrators, on 
 a consideration originating subsequently to their intes- 
 tate's death, can not sustain such an action. Whether 
 the consideration, averred in the second count, will sup- 
 port the promise to charge the defendants personally, we 
 give no opinion : the case does not require it. That the 
 promise is not stated to be in writing would be no objec- 
 tion, were the case calculated for a judgment de bonis pro- 
 priis, as the statute of frauds applies to the evidence, not 
 to the declaration (2) ; but the fatal objection to the count 
 is, that the plaintiff in his suit goes altogether against the 
 administrators in their representative character — against 
 the estate of the intestate, when, by his own showing, 
 that estate has nothing to do with his cause of action, and 
 can in no way be affected by it. 
 
 Per Curiam. — The judgment is reversed with costs. 
 Tabbs, for the appellants. 
 Judah, for the appellee. 
 
 (1) Forth V. Stanton, 1 Will. Saund. 210 and note (1). 
 
 (2) Note (2) to Forth v. Stanton, 1 Will. Saund. 211. Where a thing is 
 originally made by act of parliament, and required to be in writing, it 
 must be pleaded with all the circumstances required by the act, as in the 
 case of a will of lands, to have been made in writing ; but where an act 
 makes writing necessary to a matter, where it was not so at tlie common 
 law, as where a lease for a longer term than three years is required to be 
 in writing by the statute of frauds, it is not necessary to plead the thing to 
 be in writing, though it must be proved to be so in evidence. Anon. 2 Salk. 
 519. Note (2) to Duppa v. Mayo, 1 Will. Saund. 276. In an action on a bill of 
 exchange, tbe declaration averred that the defendant had accepted the bill, 
 but did not aver the acceptance to be in icritiin/. Held, that the averment 
 was sufficient on a special demurrer, altliougji the statute of 1 and 2 Geo. 4 
 requires the acceptance to be in tiriliug. Chalie v. Belshaw, 6 Bing. 529. 
 
 (60)
 
 MAY TERM, 1827. 52 
 
 Eaton, Associate Judge, &c., v. Benefield and Another. 
 
 [*52] *Eaton,. Associate Judge, &c., v. Benefield and 
 
 Another. 
 
 Administrators — Sureties — Remedy of Creditors. — The statute requir- 
 ing executors and administrators to give bond with surety, imposes on 
 them no new duties ; but it gives an additional remedy to creditors, leg- 
 atees, and persons entitled to distribution. 
 
 Same. — A creditor can not sue on an administration-bond, until after he 
 has obtained judgment against the estate of the intestate. 
 
 Same. — A legatee, distributee, or creditor, until his claim has been exhib- 
 ited and established according to law, and the payment thereof has been 
 refused by the executor or administrator, is not a party injured within 
 the meaning of the statute, and can have no suit for his benefit on "the 
 executor's or administrator's bond (a). 
 
 Same — Pleading — Relator. — The declaration on a bond of an executor 
 or administrator, must show the relator to be a creditor, legatee, or dis- 
 tributee. 
 
 APPEAL from the Sullivan Circuit Court. 
 
 Scott, J. — To an action of debt on an administration- 
 bond, the defendants pleaded plene administravit ; to 
 which plea the plaintiff demurred ; and there was a judg- 
 ment for the defendants. 
 
 The action is brought in the name of John H. Eaton, 
 associate judge of Sullivan county, on the relation of 
 Jesse Hadden and Henry Harper. We are not informed 
 by the record, who these relators are, or in what capacity 
 they come before the Court; whether as legatees, as per- 
 sons entitled to distribution, or as creditors of the de- 
 ceased ; or whether they have any interest at all in the 
 estate. It was decided by this Court, in the case of San- 
 ger v. The Associate Judges of Dearborn, at the May term, 
 1823, that in such an action as the present, it must appear 
 that there was a relator who had a beneficial interest in 
 the suit (1). It was not decided, nor was it necessary to 
 decide, in that case, what steps were requisite, prior to 
 bringing suit on the bond, to show the relator to be bene- 
 ficially interested. Although the administrator may have 
 
 (a) See 1 Ind. 105, 538; 31 Id. 444; 15 Id. 104. 
 
 (61)
 
 52-53 SUPREME COURT OF INDIA:N"A. 
 
 Eaton, Associate Judge, &c., r. Benefield and Another. 
 
 violated the condition of his Ijond, and thereby laid him- 
 self and his sureties liable to the party injured, yet he is 
 not liable to all the world ; nor is he liable even to credit- 
 ors or legatees, until they have sustained injury b}' his 
 ■misconduct or negligence. In England, no bond is re- 
 quired of an executor; and the statute, 22 and 23 of Car. 
 2, which requires administrators to give bond and secur- 
 ity, imposes no new duty on the administrator. 
 [^53] Neither does the ^^statute of this state. The duty 
 of executors and administrators, both here and in 
 England, remains just as it was before; but creditors, 
 legatees, and persons entitled to distribution, have an ad- 
 ditional remedy for its performance. The statute requir- 
 ing bond was made for the benefit of creditors, legatees, 
 and distributees of the deceased; bpt it would be unrea- 
 sonable and unjust, that they should be permitted to avail 
 themselves of that remedy against an innocent surety, be- 
 fore they have shown the nature and amount of their 
 claims, that assets to a certain amount came to the hands 
 of the administrator, and that he has misapplied or wasted 
 them. 
 
 The form of an administation-bond in England is the 
 same as that required by our statute; yet no one ever 
 thought of claiming a judgment against an administra- 
 tor de bonis propriis, in that country, before he had ob- 
 tained a judgment against the estate of the deceased. 
 After judgment obtained against the administrator de 
 bonis intestati, there were various methods of proceeding 
 to obtain judgment against him de bonis propriis, which 
 we need not now examine. All that is necessary at pres- 
 ent is to show that no judgment could be had, by a cred- 
 itor, against an administrator de bonis propriis^ in Eng- 
 land, until the plaintiff had first established his claim 
 against the estate of the intestate in a due course of law. 
 Sergeant Williams has given a copious and satisfactory 
 view of this subject, in a note on the case of Wheatly v. 
 Lane, 1 Saund. 219, n. 8. 
 
 (62)
 
 MAY TERM, 1827. 58-54 
 
 Eaton, Associate Judge, &c., v. Benefield and Another. 
 
 The administrution-bond is joint and several. If the 
 obligors are liable to a joint action, they are liable also 
 to be sued severally; and the judgment against them 
 whether joint or several is de bonis propriis. Thus not 
 only would the administrator be liable to an action and 
 judgment against his own goods, where no judgment had 
 been obtained, and where possibly none ever could be ob- 
 tained, against the estate of the intestate ; but an inno- 
 cent surety also might be dragged into Court in a several 
 action against himself, founded on an alleged claim against 
 the deceased, of the merits of which he could not be sup- 
 posed to be cognizant, and against wdiicli he possessed no 
 means of defence. Greenside v. Benson, 3 Atk. 248; Brax- 
 ton V. The Justices of Spotsylvania, 1 Wash. E. 31 ; Gor- 
 don's administrators v. The Justices of Frederick, 1 Munf. 
 R. 1 ; Catlett et al. v. Carter's executors, 2 Munf. K. 
 [*54] 24. In our statute, *the general assembly seems 
 to have had an eye to the same course of proceed- 
 ing. R. C. 1824, p. 323. 
 
 The same rule applies to legatees and distributees ; al- 
 though they may not in all instances have to take the 
 same steps, yet tliey must present their claims in such a 
 way as to make it the duty of the administrator or exe- 
 cutor to pay. They must occupy such ground that, in re- 
 fusing or neglecting to discharge their claims, he so far 
 violates his duty as to subject himself, independently of 
 the bond, to a judgment de bonis jjrojmis. R. C. 1824, p. 
 321, sec. 18. 
 
 Any person, whether legatee, distributee, or creditor, 
 whose claim has not been exhibited and established ac- 
 cording to law, and refused by the administrator, is not a 
 party injured w^ithin the meaning of the statute, and has 
 no right to the possession of the bond, nor to have a suit 
 brought upon it at his instance and for his benefit; and 
 where the right of suing on the bond is abused, it is the 
 duty of the Court to interfere and stop the proceedings. 
 1 Johns. Rep. 311. It is not shown nor even alleged that 
 
 (63)
 
 54-55 SUPREME COURT OF mDIANA. 
 
 M'Donald and Another v. Beach and Another. 
 
 the relators, in this case, are either creditors or persons 
 entitled to distribution. For aught that appears in the 
 declaration, the action would have been as well brought 
 on the relation of John Doe and Richard Roe. 
 
 It is unnecessary to examine the plea. The demurrer 
 brings the whole case before the Court. The declaration 
 is defective, and the judgment must be affirmed. 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Jiidah, for the appellant. 
 
 Tabbs, for the appellees. 
 
 (1) Vol. 1 of these Rep. 251. When suit is brought on a bond given by 
 an executor or administrator, or by any state, county, or township officer, 
 to the state, governor, judges, sheriff, or other civil officer, for the perform- 
 ance of any duty or trust, the person for whose use the suit is instituted, 
 must endorse on the process for whose benefit the same was issued; and, if 
 he fail in the suit, he is liable for costs. R. C. 1831, pp. 402, 403. 
 
 In actions of ejectment, actions in the name of the state for the use of any 
 person, actions in favor of a nominal plaintiff for the use of another person, 
 the defendant, if he obtain judgment, may, in lieu of the order and attach- 
 ment for costs heretofore allowed, take a judgment for costs against the les- 
 sor relator, or person for whose use the suit is brought. Stat. 1833, p. 113. 
 
 [*55] *M'DoNALD and Another v. Beach and Another. 
 
 Partnership— Equities of Firm and Individual Creditors. — The doc- 
 trine — that the separate debt of one partner should not be paid out of the 
 partnership estate, until all the debts of the firm are discharged — is cor- 
 rect; but it does not apply until the partners cease to have a legal right 
 to dispose of their property as they please. It is applicable only, when 
 the principles of equity are brought to interfere in the distribution of the 
 partnership property among the creditors (o). 
 
 Same — Fraudulent Conveyance. — Those equitable principles operate on 
 the property remaining in the possession of the partners, and embrace all 
 that has been fraudulently disposed of; but they do not extend to such 
 as has been previously transferred by the firm in good faith. 
 
 ERROR to the Clark Circuit Court. 
 
 (a) See 4 Ind. 169, 9 Id. 343 ; 17 Id. 463 ; 15 Id. 124; 33 Id. 114. 
 
 (64)
 
 MAY TERM, 1827. 55-56 
 
 M'Donald and Another v. Beach and Anotlier. 
 
 HoLMAN, J. — The bill, answers, and exhibits, in this 
 case, show that William Steele and Robert Steele, mer- 
 chants and partners, were indebted to the complainants 
 in the sum of 4,043 dollars, for which they drew a bill of 
 exchange on Richard Steele, a resident of Louisville, 
 Kentucky, payable on the 15th of December, 1822, which 
 was presented and accepted, as is said, for the accommo- 
 dation of the drawers, but was afterwards protested for 
 non-payment; and that William and Robert Steele are 
 insolvent. The bill also charges a further debt against 
 William and Robert Steele of several thousand dollars, 
 but of this there is no proof. It also appears that Wil- 
 liam Steele, as surety for John Wilson (who was insolv- 
 ent), was indebted by a writing obligatory to the trustees 
 of Clarksville to the amount of 2,700 dollars ; and that 
 Orlando Raymond, as agent for the trustees, obtained, 
 through William Steele, from Richard Steele, who was 
 the agent of William and Robert Steele, an order in the 
 name" of said firm, dated, the 14th of October, 1822, for 
 280 barrels of salt, the property of said firm, which had 
 been shipped to Daniel Wurts, commission merchant of 
 said firm at Jeffersonville, for sale. This salt was ob- 
 tained on said order and deposited with the defendant 
 Beach; and the proceeds were to go towards the pay- 
 ment of the debt due to the trustees. Raymond also ob- 
 tained a draft, in the name of William and Robert Steele, 
 on said Wurts for the balance of the debt due the trus- 
 tees, dated the 26th of October, 1822, payable in six 
 .months; which draft was accepted by Wurts, provided 
 
 he should have funds belonging to the said Steeles, 
 [*56] and he promised to retain the *funds that came 
 
 into his hands for that purpose. In consequence 
 of which draft, Wurts retained in his hands the sum of 
 1,200 dollars, which was less than the amount due the 
 trustees. This draft was in the hand-writing of William 
 Steele; but it does not appekr that this fact was known 
 either to Raymond or the trustees. On the 10th of No- 
 
 VoL II.— 5 (65)
 
 56 SUPREME COURT OF IKDIAXA. 
 
 M'DonalJ and Another v. Beach and Another. 
 
 vember, 1822, the trustees transferred the bond of Wil- 
 son aud William Steele to Beach, who was one of the 
 trustees; and, as a collateral security for the payment, 
 they transferred to him tlieir claim on the 280 barrels of 
 salt, and also the draft on Wurts. The salt was after- 
 wards sold for 1,012 dollars and 86 cents, and that 
 amount credited on said bond, on the first of February, 
 1823. 
 
 The complainants claim the proceeds of this salt, and 
 the money retained by Wurts, alleging that, by agree- 
 ment with William and Robert Steele, they were to have 
 the proceeds of all the salt shipped to Jeffersonville, and 
 that this agreement was known to Beach and the trus- 
 tees. The answers deny all knowledge of this agree- 
 ment, and there is no evidence to support it. They also 
 urge, that this disposition of the partnership property, to 
 pay the separate debt of William Steele, was without the 
 knowledge and consent of Robert Steele ; and that the 
 trustees knew this at the time they obtained the order 
 and the draft aforesaid. This is denied by the answers ; 
 and there is no proof that this arrangement was made 
 without the knowledge of Robert Steele. It is true that 
 Robert Steele, who resided at Kenhawa, Virginia, wrote 
 a letter to Wurts, dated the 8th of May, 1823, protesting 
 against the payment of said draft, and stating that he did 
 not conceive it right for William Steele to apply the partner- 
 ship property to the payment of his separate debt. This let- 
 ter was written after the proceeds of the salt had been 
 credited on the bond of Wilson and William Steele, and 
 after the draft on Wurts had become due and payable. 
 It does not expressly deny a kno'svledge of, and consent 
 to, the arrangement with the trustees ; but if it- is sup- 
 posed to do this indirectly, its effect is somewhat weak- 
 ened by the testimony of Raymond, w^ho states that he 
 saw Robert Steele in Louisville, in the month of October, 
 1822, or a little after; which was about the time, or just 
 after, the trustees had obtained the 280 barrels of salt, 
 
 (6Q)
 
 MAY TERM, 1827. 56-57 
 
 M'Donald and Another v. Beach and Another. j 
 
 and the draft on Wurts; and it would seem from the de- 
 position of Payne, a notary public, that, on the 
 [*57] 18th of December, 1822, he *delivered to Robert 
 Steele, in Louisville, a notice of the protest of the 
 bill of exchange; so that it would appear that Robert 
 Steele had an early opportunity of becoming acquainted 
 with this arrangement with the trustees. It is further 
 weakened by the fact that Richard Steele, the agent of 
 "William and Robert Steele, who gave the order for the 
 salt, was personally bound to the complainants as ac- 
 ceptor of the bill of exchange, for the only debt they 
 have proved against the firm of William and Robert 
 Steele. Another strong ground which the trustees had 
 to suppose that both the partners knew of the whole 
 transaction, was, that when Raymond first applied to 
 William Steele for the salt, said Steele informed him that 
 he would do nothing in it without consulting his partner; 
 and about three weeks afterwards he gave the order; 
 and that "William Steele, who resided at Cincinnati, Ohio, 
 was, in general, the active partner in relation to the salt 
 shipped by the firm to Jeflersonville. Taking these cir- 
 cumstances together, there seems to be strong reasons to 
 induce a belief, that both the partners were acquainted 
 with, and consented to the adjustment made with the 
 trustees ; and that both partners were bound by it. No • 
 argument is here drawn from the power that Richard 
 Steele, as a general agent, had to adjust the separate debt 
 of William Steele, by a disposition of the partnership 
 funds ; nor from the power that "William Steele, as a part- 
 ner, had to divert any part of the partnership property 
 from the purposes of the firm, to pay his own. debt, con- 
 trary to the will of his co-partner ; for this power, in 
 Richard Steele, as agent, or William Steele, as a partner, 
 is not contended for. But where no covin appears, one 
 partner will not be considered as acting without the con- 
 sent of the other; and an agent as deeply interested as 
 Richard Steele was, can never be presumed to transcend 
 
 (67)
 
 57-58 SUPREME COURT OF INDIANA. 
 
 M'Donald and Another r. Beach and Another. 
 
 his authority ill helialf of strangers; when by so doing lie 
 will increase his own liability. There is a circumstance 
 in this case that suggests the idea, tliat even tlie com- 
 plainants considered this as a legal transaction. On the 
 9th of November, 1822, the complainants obtained an 
 order on Wurts, in the name of William and Robert 
 Steele, for the partnership funds that might be in his 
 hands; which order was accepted by Wurts condition- 
 ally, to be discharged after satisfying his own demands, 
 and the obligations he was already under on account of 
 
 said firm. Now, it is not probable that the nature 
 [*58] of this conditional ^acceptance was unknown to 
 
 the complainants, or was withheld from the knowl- 
 edge of Robert Steele, unless the complainants, as well as 
 Richard Steele, were perfectly satisfied with what had 
 been previously done. So that we are induced to believe 
 that no person whatever, at this period, supposed that 
 there was anything illegal or fraudulent in this trans- 
 action with the trustees. And we are strengthened in 
 the belief that this transaction was not only in good faith, 
 bat that no person supposed the contrary, from the cir- 
 cumstance that the adjustment was made, and the claim 
 of the trustees transferred to Beach, sometime before we 
 hear of any suspicion of the insolvency of William and 
 Robert Steele. It is not until December, 1822, that we 
 learn that they were considered doubtful at Kenhawa, 
 the principal seat of their business; and not until March, 
 1823, that they were there reputed insolvent. There- 
 fore, after examining all the circumstances of the case, 
 we can but consider this transaction as the joint act of 
 the firm, disposing of so much of the partnership prop- 
 erty for the separate benefit of one of the partners. - 
 
 But it is contended, that the separate debt of one part- 
 ner should not be paid out of the partnership estate, until 
 all the debts of the firm are discharged. This doctrine 
 is correct, but it does not apply, until the partners cease 
 to have a legal right to dispose of their property as they 
 
 (68)
 
 MAY TERM, 1827. 58-59 
 
 M'Donald and Another v. Beach and Another- 
 
 please. It is applicable, only when the principles of equity- 
 are brought to interfere in the disti'ibution of the partner- 
 ship property among the creditors. These equitable prin- 
 ciples operate not only on the property remaining in the 
 possession of the partners, but embrace all that has been 
 fraudulently disposed of; bat will not extend to such as 
 has been previously transferred in good faith. There is 
 no ground on which we can presume that the trustees, 
 when they made this arrangement for the discharge of 
 their demand; or that Beach, when he purchased their 
 claim; had any intention of defeating the claimants in 
 the recovery of their debt ; for it does not appear that 
 they had any certain knowledge of its existence. They 
 were desirous of recovering their own debt ; and whether 
 it was discharged out of the separate property of William 
 Steele, or out of the partnership property of William and 
 ■ Robert Steele, was a matter in which they were 
 [*59] not directly concerned. The trustees obtained *pos- 
 session of the salt, and of the draft on Wurts, and 
 transferred their claim to Beach, at a time when no per- 
 son, not even the complainants, seem to have supposed 
 there was any tinfairness in the transaction; and having 
 obtained this legal advantage, it would require a strong 
 claim, indeed, to divest them of it. The claim of the 
 complainants is not of this nature. The only debt they 
 have attempted to prove, arises on the bill of exchange. 
 This was payable on the 15th of December, 1822. On the 
 9th of November previous, they received the conditional 
 acceptance of their order on Wurts, and we presume were 
 acquainted, at that time, with the draft in favor of the 
 trustees ; yet they permitted this arrangement to proceed 
 undisturbed, until they filed the present bill in November 
 1823. For the amount due on this bill of exchange, they 
 have Richard Steele liable to them as the acceptor. It is 
 true, tliey are not bound to resort to the acceptor of the 
 bill, but may urge their claim upon the partnership prop- 
 erty, when the property has not been disposed of, or the 
 
 (69)
 
 69-60 SUPREME COURT OF mi)IAI?TA. 
 
 M'Donald and Another v. Beach and Another. 
 
 disposition is fraudulent. But where there are eonflict- 
 ino- claims, the manner in which those claims are secured, 
 is resorted to as a means of determining their compara- 
 tive merit. So, in this case, the complainants have not 
 the same plea for interfering with any disposition of the 
 partnership property that they would have had, if they 
 had no security for their demand. It should however be 
 remembered, that the bill charges that Richard Steele is 
 not able to pay the whole of their demand. On the other 
 hand, his entire ability to pay the whole is asserted by 
 the answers; and no proof is adduced on the subject. 
 The answers also state, that the complainants have insti- 
 tuted suit against him, and have stayed the proceedings 
 until this suit is determined; and that this suit is prose- 
 cuted for his benefit : so the presumption is, that the com- 
 plainants have ample security for their debt. In thus 
 stating the merits of the complainants' demand, we do 
 not contrast it with the demand of the trustees, on the 
 ground that the trustees had originally any claim on the 
 partnership propert}', but on the ground that they have 
 received a legal claim to, and possession of, a part of the 
 partnership funds, and at a time when the partners had 
 entire control over their property; and our object is to 
 show, that if any claim could be strong enough to 
 [*60] defeat the *claim of the trustees, that the com- 
 plainants have not made out such a claim. 
 But it is urged, that if the complainants have not shown 
 themselves entitled to divest the defendants of these funds, 
 on account of their having security for their debt; yet 
 that Richard Steele, as he has to discharge this bill of ex- 
 change, which it is said was accepted for accommodation 
 only, should be considered as a creditor of the said firm ; 
 and that the arrangement with the trustees should be set 
 aside in his favor. But, when his agency in this business 
 is considered, it is impossible to suppose that the trustees 
 have committed a fraud against him, or have taken any 
 undue advantage of him. 
 
 (70)
 
 MAY TERM, 1827. 60-61 
 
 M'Donald and Another v. Beach and Another. 
 
 We have, throughout this case, considered Beach in the 
 same situation, as the trustees of Clarksville, as he was a 
 member of that corporation, and was individually apprised 
 of the nature of the securities he obtained with the trans- 
 fer 01 the demand of the trustees ; so that it is unneces- 
 sary to investigate a question that has been stirred, 
 whether he has paid the full consideration to the trustees 
 for their claim. lie is entitled at all events, as far as the 
 complainants and Richard Steele are concerned, to all the 
 advantages that could be claimed by the trustees. And 
 we see nothing in the case, thus far, to authorize a Court 
 of equity to rescind the contract with the trustees, or to 
 divest Beach of any legal advantage he has obtained. 
 
 There is another feature of the complainants' case that 
 merits some attention. A written agreement was entered 
 into on the 9th of November, 1822, between AVilliam Steele 
 and Beach, by which William Steele was to furnish Beach 
 with a quantity of salt at a stipulated price, sufficient, 
 with what salt he had received, to pay off the demand of 
 the trustees : The salt to be delivered in ten days, and the 
 order on Wurts to he given iqy. It does not appear that 
 either part of this agreement was fulfilled. The salt was 
 not delivered, nor the order given up. Beach in his an- 
 swer states, that the order was not to be given up until 
 the salt was delivered. But the complainants contend, 
 that, according to the agreement, the order was to be 
 given up unconditionally ; and that no condition can be 
 annexed to it by parol. This agreement is not a deed, 
 and what right William Steele might have had under it 
 to demand this order, before the failure to comply 
 ["^61] with the agreement on his part, need not *now be 
 inquired into; for the failure to deliver the salt, 
 presents a total failure of the consideration on which the 
 order was to be given up. So that neither law nor equity 
 would require Beach to deliver up the order. This cir- 
 cumstance, therefore, can not affect the case of the com- 
 plainants. Their bill was correctly dismissed by the Cir- 
 cuit Court. ' (71)
 
 61 SUPREME COURT OF INDIANA. 
 
 Bosley r. Farquar and Another. 
 
 Per Curiam.— The decree is affirmed with cosCb. 
 Deicey and Nelson, for the plaintiiis. 
 Mowk, for the deffciidants. 
 
 Bosley v. Farquar and Another. ' 
 
 Jurisdiction— "WArv'ER — C^iange of Venue.— The record showed that a 
 suit had been commenced in the Orange Circuit Court, and that a decla- 
 ration and plea had been therein filed ; that the declaration and plea, 
 with an affidavit for a change of venue, were afterwards on file in the 
 Washington Circuit Court ; that the cause was tried, and a verdict ren- 
 dered for the plaintiff, a new trial granted on the defendant's motion, a 
 second verdict and final judgment rendered for the plaintiflT, in the last- 
 named Court. Held, that the circumstance of the record's not showing 
 an order for a change of venue, could not be assigned for error, no objec- 
 tion having been made below to the jurisdiction of the Washington Cir- 
 cuit Court (a). 
 
 Evidence — Sheriff's Return. — In an action against a sheriff for a false 
 return, the execution is admissible in evidence, though it do not specify 
 the day on which it is returnable. 
 
 Same — Form of Return. — The sheriff's return to a fieri facias Avas, that 
 he had not levied because the plaintiff would not give him an indemnity: 
 Held, that this was a return unknown to the law, and that the cause must 
 stand as if no return were made (6). 
 
 Execution — Levy — Indemnity. — Even if such an indemnity could be re- 
 quired in any case, it should be demanded as soon as the circumstance!" 
 authorizing the demand were known to exist. 
 
 Same — Duty of Officer. — If the sheriff, in consequence of vague rumorf 
 as to whether certain goods are the debtor's or not, return nulla bona 
 without having the right of property tried by a jury, — he will be liabl* 
 for a false return, on proof that the goods were subject to the execution. 
 
 Sheriff — Authority of Deputy. — If it appear that a person has acted 
 generally as a deputy sheriff, with the sheriff's knowledge and consent, 
 the sheriff is liable for the official acts of such person, though he may nol 
 have given him any express authority. 
 
 Practice — Dispersion of Jury — No Error. — The jury, about to retire t(J 
 consider of their verdict, w^re instructed by the Court, that should they 
 agree before the meeting of the Court on the following day, they might 
 seal up their verdict, disperse, and hand in their verdict on the next 
 morning. Held, 1st, that as the record did not show the di-spersion of 
 
 (a) 6 Blkf. 529 ; 4 Ind. 2 ; 19 Id. 324 ; 46 /(/. 315o (b) 44 Ind. 490-507. 
 
 (72)
 
 MAY TERM, 1827. 61-62 
 
 Bosley v. Farquar and Another. 
 
 the jury, no objection founded on their dispersion could be noticed on a 
 writ of error ; 2dly, that as the instruction was not objected to when 
 given, the dispersion were it shown could not be assigned for error (c). 
 
 [*62] TERROR to the Washington Circuit Court.— 
 Action on the case by Farquar and Collins against 
 Bosley, sheriif of Orange county, for a false return to a 
 writ of tieri facias. Plea, the general issue. Verdict and 
 judgment for the plaintiffs. 
 
 HoLMAN, J. — Farquar and Collins in their declaration 
 against Bosley, show the recovery of a judgment in their 
 favor against H. Stephen, for 138 dollars and 92 cents; 
 and the issuing of a fieri facias thereon, which was placed 
 in the hands of Bosley as sheriff; averring that Stephen 
 had sufficient property to satisfy said execution ; but that 
 Bosley refused to levy the execution, and falsely returned 
 it not levied, because the plaintiffs would not give him a 
 bond of indemnity; and averring also, that the sheriff 
 never requested a bond of indemnity of the plaintiffs. 
 The defendant pleaded not guilty. This declaration and 
 plea were filed in the Orange Circuit Court. Afterwards, 
 they, together with an afi&davit for a change of venue, 
 were found among the records of the Washington Circuit 
 Court. No order for a change of venue appears, but no 
 objection was made to the jurisdiction of the Washington 
 Circuit Court, where the case proceeded through several 
 continuances, and two trials by jury, to a verdict in favor 
 of the plaintiffs, on which judgment was given. After 
 the first verdict, the defendant obtained a new trial. 
 When the second verdict was found, he again moved for 
 a new trial, which was refused; whereupon he filed a bill 
 of exceptions setting forth the whole of the evidence. 
 
 The bill of exceptions contains the judgment in favor 
 of the plaintiffs, the fieri facias that issued thereon, and 
 the sherifi's return. It also contains a judgment in favor 
 of Clendenin against H. Stephen, for 271 dollars and 75 
 
 (c) See post, 114 ; 3 Blkf. 27 ; 37 Ind. 469 ; 34 Id. 464 ; 36 Id. 288 ; 40 Id. 
 289 ; 48 Id. 207. 
 
 (73)
 
 62-63 SUPREME COURT OF INDIAISTA. 
 
 Bosley v. Farquar and Another. 
 
 cents, and a fieri facias thereon, which was levied on a 
 variety of articles of household furniture, a lot of fur, and 
 a number of law books in the hands of third persons. 
 This property, except the lot of fur and the law books, 
 was sold for 130 dollars and 53 cents. The lot of fur was 
 claimed by J. Stephen, the right of property was tried, 
 and found against the claimant, who appealed to the Cir- 
 cuit Court; and the books were not sold for the want of 
 buyers. A venditioni exponas issued for the sale of the 
 books. These books were principally in the possession 
 of Blanchard, who claimed a lien on them for 170 dollars, 
 
 and who refused to give them up until that sum 
 [*63] was paid. The books, thus ^situated, sold for 400 
 
 dollars under an agreement between H. Stephen 
 and the purchaser, that, after satisfying the execution, 
 the purchaser should retain the balance of the purchase- 
 money. The witness does not know that they would 
 have sold for as much on a regular sale. 
 
 It appeared in evidence, that the plaintiffs' and Clen- 
 denin's executions were both placed in the hands of Lind- 
 ley, as the deputy of Bosley, on the same day, but that 
 the execution of the plaintiffs was first, and that Lindley 
 was charged by one of the plaintiffs to levy it first, or he 
 would hold him responsible; that a day or two after- 
 wards, Clendenin took his execution out of the hands of 
 Lindley and placed it in Bosley's hands, and on Bosley's 
 refusing to lev}" it without a bond of indemnity he gave 
 the indemity; and that afterwards, on the same day, 
 Lindley placed the execution of the plaintiffs in Bosley's 
 hands; and that Lindley generally acted as a deputy 
 sheriff under Bosley. One of the witnesses had an im- 
 pression that Bosley told him that Lindley was his dep- 
 uty. It also appeared in evidence that an idea prevailed, 
 that the property of H. Stephen was not liable to execu- 
 tion, and that Bosley had received the opinion of an at- 
 torney at law to that efl'ect, by whom he was advised to 
 
 (74)
 
 MAY TERM, 1827. 63-04 
 
 Bosley v. Farquar and Another. 
 
 exact a bond of indemnity of the plaintifis before he levied 
 their execution. 
 
 Objections were made, by the defendant, to the reading 
 of the judg!nents and executions in evidence; and to the 
 execution of the plaintifis in particular, because the re- 
 turn day was not inserted; but the Court permitted them 
 to go in evidence to the jury. 
 
 The defendant moved the Court to instruct the jury, 
 that under the circumstances of doubt, in which H. Ste- 
 phen's property was involved, the sheriff* was justified in 
 not levying the plaintiffs' execution without a bond of 
 indemnity; which instruction the Court refused to give. 
 And the Court instructed the jury that if they were sat- 
 isfied, from the evidence, that Lindley did act generally as 
 the deputy of Bosley, and with Bosley's knowledge and 
 consent, that Bosley was responsible for his acts, and that 
 proof of a written appointment or bond was unnecessary. 
 
 In reviewing these proceedings, w^e can not but per- 
 ceive that the objection to the jurisdiction of the Wash- 
 ington Circuit Court comes too late. If the venue 
 [*64] had not been regularly ^changed or not changed 
 at all, from Orange to Washington, this matter 
 should have been rectified in the Washington Circuit 
 Court before any other proceedings were had in the case. 
 As no objection was then made, nor in fact made at any 
 time in that Court, none can avail here. 
 
 The motion to reject the plaintifis' execution from be- 
 ing read as evidence to jury, because the return day was 
 not inserted, was properly overruled. The execution 
 commands the sheriff to return the money made, together 
 with the writ, but does not specify the day wdaen this is 
 to be done; but that Court, no doubt, according to the 
 act of assembly, had regular return days, so that the 
 sheriff could be at no loss when the execution was to be 
 .returned. In England, executions are returnable to the 
 terms of the Court, yet an execution returnable out of 
 term is not void, but only voidable. CamjyheU v. Cumming, 
 
 (75)
 
 64-65 SUPREME COURT OF INDIANA. 
 
 Bosley v. Farquar and Another. 
 
 2 Burr. 1187. So also in New York, Cramer v. Vcm 
 Alstyne, 9 Johns.. R. 386. In Kentucky, an act of as- 
 sembly requires that there should not be more than 90 
 days between the test and return day of an execution; 
 yet it was there held, in an action for not returning an 
 execution which was returnable more than 90 days from 
 the test, that the execution was not void bnt only void- 
 able, and that the sherilt'was liable for not returning it. 
 Wilso7i V. Huston, 4 Bibb, 332. Similar doctrine may be 
 found in a variety of cases. See Shirley v. Wright, 2 Ld. 
 Raym. 775, S. C. 2 Salk. 700; Williams v. Rogers, 5 Johns. 
 R. 163, and the cases there cited. We consider that the 
 omission of the day of return in this case did not render 
 the execution void; the sheriff might have justified under 
 it, and is liable for not levying it. 
 
 The reason assigned, in the sheriff's return for not 
 levying this execution, is insufficient to justify or excuse 
 him. The return is unknown to the law. There is no 
 general rule laid down in the books on the subject of in- 
 demnifying the sheriff in doubtful cases. In the case of 
 Bayley v. Bates, 8 Johns. R. 187, it is said to be the usual 
 course for the sheriff to take an indemnity, by bond, from 
 the plaintiff, if the question of property be doubtful or 
 litigated. But it does not appear that the sheriff can de- 
 mand an indemnity as a matter of right, or refuse to act 
 if it is not given. Such appears to be the doctrine con- 
 tained in the case of M' George et al. v. Birch, 4 Taunt. R. 
 585. There the sheriff had taken ihe goods of a 
 [*65] bankrupt in execution, at * the suit of Cohen. The 
 assignees gave notice to the sheriff that they 
 claimed the goods. He apprised Cohen of this and re- 
 quested him, either to authorize the delivery of the goods 
 to the assignees, or to indemnify the sheriff; but Cohen 
 refused to do either. He then desired the assignees to 
 receive the goods and give an indemnity, which they also 
 refused, and commenced an action against him. The 
 state of the case being made known to the Court, they 
 
 (76)
 
 MAY TERM, 1827. 65-66 
 
 Bosley v. Farquar and Another. 
 
 took measures to secure the sheriff"; but the course pur- 
 sued is very far from leading to the idea, that the sheriff" 
 would be excused from acting on the execution for want 
 of an indemnity. It does not appear to be obligatory on 
 the plaintiff" to indemnify the sheriff in any case; and if 
 he fails or refuses to do so, there are various methods sug- 
 gested in the books by which the sheriff may be -protected 
 from injur}'. See the above cases of 31^ George v. Birch, 
 and the cases cited in Bayley v. Bates. But we have seen 
 no case where a sheriff" is said to be excused in not acting 
 on an execution for want of an indemnity. If an indem- 
 nity is off'ered, or given, the sheriff' may be, and is, re- 
 quired to do many things that he would be justified in 
 not doing if there was no indemnity; and if he refuses 
 an indemnity, when off'ered, he will be held liable in 
 many cases where he would be othorwise excused. Bay- 
 ley V. Bates, supra; Van Cleefx. Fhet, 15 Johns. R. 147; 
 3 Stark. Ev. 1344, and the cases there cited (1). 
 . But even if a sheriff were justified in not acting on an 
 execution unless an indemnity were given, it would seem 
 to be a necessary part of the rule that he should apprise 
 the plaintiff" of the state of the case, and of his determin- 
 ation not to act without an indemnity. And this should 
 be done when he received the execution ; or, if the doubts 
 in which the goods of the debtor were involved were then 
 unknown, he should seek the earliest opportunity, after 
 he ascertained that the goods were in dispute, to inform 
 the plaintiff" of the circumstances of the case. In this 
 case the plaintiff's aver in their declaration, that the sheriff 
 never requested an indemnity of them; nor does it ap- 
 pear that he at any time informed them that there was 
 any necessity for an indemnity. His having neglected to 
 give this information to the plaintiffs, and having given 
 it to Clendenin, whereby Clendenin procured the levying 
 of his execution, seems to manifest on the part of 
 \^QQ'\ the sheriff", a disposition to give undue ^preference 
 
 (")
 
 m SEPREME COURT OF INDIANA. 
 
 Bosley v. Farquar and Another, 
 
 to the younger execution ; an evil against which the 
 rules of law are intended to guard. 
 
 When a sherifl" receives a fieri facias, it is his duty to 
 use due diligence in searching for the property of the 
 debtor; and if he finds it involved in doubt and dispute, 
 he should make every inquiry that the nature of the case 
 presents, in order to ascertain to whom it actually be- 
 longs; and for this purpose he may have the right of 
 property tried, as directed by the act of assembly (2). 
 But if he should be influenced by vague and uncertain 
 rumors, as to the goods of the debtor, and, without in- 
 quiring into the right, should return nulla bona, and it 
 should afterwards appear that the goods were liable to 
 the execution, there can be no doubt but that the sherifl" 
 would be liable for a false return. 3 Stark. Ev. 1344. 
 
 In this case the return being unknown to the law, is as 
 if there was no return at all, which, in legal construction, 
 is a false return ; and such in fact is the efi'ect of this re- 
 turn, if taken in the full force of its expressions; it con- 
 veys the idea that the sheriflf has not acted on the execu- 
 tion. But suppose the sherifl', in this case, had returned 
 nulla bona, the usual return when the sherifl" supposes he 
 is justified in not levying on the supposed property of the 
 debtor, and the facts that appeared in the proceedings 
 under Clendenin's execution, had been shown in evidence 
 — can there be a question but that the sherifl' would be 
 liable for a false return? The execution of the plaintift's 
 was for 138 dollars and 92 cents, and the goods sold on 
 Clendenin's first execution amounted to 130 dollars and 
 53 cents, nearly enough to satisfy the execution ; and, 
 about the ownership of these goods, there does not ap- 
 pear to have been any doubt or dispute whatever. This, 
 with the sale of the books, for a sum so far above what 
 would have been required to satisfy the execution of the 
 plaintifl's, shows conclusively that if the sherifl' had levied 
 their execution, instead of Clendenin's, that it might have 
 been satisfied. Nor does it appear that the sherifl" experi- 
 
 (78)
 
 MAY TERM, 1827. 66-67 
 
 Bosley r. Farquar and Another. 
 
 enced any peculiar difficult}', or was exposed to any pecu- 
 liar danger, in making this levy and sale; nothing has 
 been seen that suggests any other idea than that the 
 sheriiF, with ordinary diligence, might have known the 
 true state of so much of the debtor's goods, as 
 [*67] would have satisfied the execution of *the plain- 
 tiffs. So that, in every point of view, we think 
 the sheriff's return unwarranted by law. 
 
 The instructions given by the Court to the jury, re- 
 specting the liability of Bosley for the acts of Lindlej^, 
 were correct. If Lindley acted generally as the deputy 
 sheriff of Bosle}', with Bosley's knowledge and consent, 
 Bosley should be liable for his official acts, even if he had 
 never given him express authority. 
 
 After the jury in this case were sworn, and the evi- 
 dence heard, the Court, being about to adjourn, author- 
 ized the jury, that, if they made up their verdict before 
 the Court was again open, they might seal it up and dis- 
 perse, and hand in their verdict when the Court opened 
 the next morning. The next morning the verdict was 
 given in, and this is assigned for error. But the plaintiff 
 in error should recollect that it does not appear of record 
 that the jury did disperse; they may have continued in 
 their room all night; nor does it appear that the plaintiff 
 in error made any objection to this direction of the Court. 
 If no objection was made at the time to the dispersion of 
 the jury, after they had made up and sealed their ver- 
 dict, there was no error committed, even if the jury had 
 left their room according to the privilege given by the 
 Court (3). 
 
 Per Curiam. — The judgment is affirmed with 1 jper cent. 
 damages and costs. 
 
 Rowland and Farnham, for the plaintiff. 
 Nelson, for the defendants. 
 
 (1) If the property in goods taken under an execution be in dispute, as 
 frequently happens in the case of bankruptcy, &c., the Court upon the sug- 
 ye^iion (.f this or any other reasonable cause, by the sheriff, will enlarge 
 
 (79)
 
 67-68 SUPREME COURT OF INDIANA. 
 
 Bosley r. Farquar and Another. 
 
 the time for making the return, until the right be tried, or until one of 
 the parties have given the sheriflf a sufficient indemnity. Semb. 7 T. R. 
 173; 2 W. Bl. 1064, 1181; 7 Taunt. 294; 1 Bingh. 71. This, however, is 
 not to be considered a general rule; but the indulgence will be granted 
 only in special cases, under particular circumstances, because the sheriflT, 
 where the property is in dispute, may summon an inquest to say whose 
 property it is, before he returns the writ. But in all cases where the doubt 
 arises from a point of law, and not from mere matter of fact, the Court 
 upon application will enlarge the time for making the return. See 4 
 Taunt. 585; 7 T. R. 178; 1 Taunt. 120; 1 Arch. Pr. 288. 
 
 The following are some of the cases on this subject : 
 
 Where a commission of bankrupt has been issued against a defendant, 
 and his assignee claim the property, and the plaintifl' refuses to indemnify 
 the sherifl', the Court will enlarge the time for the sherifl's returning the 
 fieri facias until the next term. But there must be a rule to show cause. 
 
 Ledbury v. iSmith, 1 Chitt. R. 294. 
 [*68] *An action having been brought against the sheriff by the as- 
 signee of a bankrupt for taking goods after the bankruptcy, on a 
 writ issued out of C. P., in which Court time had been given to return the 
 writ, this Court, K. B., staid the proceedings until an indemnity was given 
 to the sheriff, on the terms of his paying over to the assignee the money 
 levied, and the costs of the action against the sheriff. Probinia v. Roberts, 1 
 Chitt. R. 577. 
 
 A sheriff may apply to the Court for a rule to enlarge his return to a 
 venditioni exponas, from term to term, if the defendant become bankrupt, 
 unless he be indemnified by the assignees in paying over the money levied 
 under it, or the rule for such enlargement be duly discharged. Venables v. 
 Wilks, 4 J. B. Moore, 339. 
 
 A rule to show cause, v/hy the rule calling on the sheriff to return a fieri 
 facias, should not be enlarged until the sheriff should be idemnified, was 
 obtained. On the facts being disclosed, the plaintiff contended that he was 
 not bound to indemnify the sheriff, because he had a right to seize the 
 goods, which were the defendants's, wherever he could find them. A third 
 person, who claimed the goods, submitted that he was not bound to give an 
 indemnity, as he was clearly the owner of the goods. The Court said, that 
 as there was considerable difficulty in determining which of the parties was 
 entitled to have the goods, the sheriff ought not to be called upon to 
 come to that determination ; the sheriff ought therefore to be indemnified. 
 The rule for enlarging the time for returning the writ must consequently 
 be made absolute. Clegg v. Woollan, M. T. 18.30, K. B. 1 Leg. Obs. 108. 
 
 A rule was obtained to show cause why the sheriff should not have 
 further time to return the writ of fi. fa. directed to him, and under which he 
 had levied. From the facts disclosed, on .showing cause, it appeared that 
 whether the property of the defendant vested in his assignees under a com- 
 mission of bankrupt, depended on the construction to be put on a statute of 
 (5 Geo. 4. The Court thought that the act did not vest the goods of the 
 defendant in the assignees ; yet that, as it appeared a question liable to 
 doubt, the sheriff ought to have time to consider the course he would 
 pursue. The Court said that the rule, therefore, would not be made abso- 
 lute in the common form, but for enlarging the rule to return the writ until 
 the end of the next term. The sheriff might of course in the meantime, 
 come to the Court and applv to enlarge the time still further. Rule abso- 
 lute._ K. B. M.T. 1830, Ibberson v. Dims, 1 Leg. Obs. 109. 
 
 Richards showed cause against a rule, calling on a defendant to show 
 cause why the sheriff should not have time to return the writ until the first 
 day of the next term. The fi. fa. had been made returnable on Monday 
 next after the morrow of St. Martin. On the 1st of November, the writ had 
 been delivered at the sherifJ's office, and the sheriff accordingly proceeded 
 
 (80)
 
 MAY TERM, 1827. 68-69 
 
 Bosley c Farquar and Another. 
 
 to lew. He was then informed, that the whole of the good? on the prem- 
 ises had been assigned to a person named John Jones. There was no reason 
 stated for suspecting the assignment to be fraudulent, except that Jones 
 was the nephew of the defendant. The parties all lived in the neighbor- 
 hood, and consequently ample opportunity was afJbrded of inquiring into 
 the ciiTumstances under which the assignment took place. This Avas not 
 the ordinary case of an application by the sheriflT for indemnity. There 
 was here no bankruptcy. Tomlinson, in support of the rule, stated that 
 an application had been made by the sheriff, both to the execution-creditor 
 and to the assignee of the property, for an indemnity ; but it had been re- 
 fused by both. LirrLEDALE, J., observed, that in the case of a bankruptcy, 
 it was a matter of course to grant time to the sheriff to return the writ until 
 an indemnity was given ; and here, he tiiought, it was only right that the 
 sheriff should have a reasonable time, until the first day of the next term, 
 for the purpose of inquiring into the matter. Eule absolute. K. B. M. T. 
 
 1830. ,Sutt07i V. Jones, 1 Leg. Obs. 17.5. 
 [*69] *The sheriff' seized, under an execution issued by Antrobus against 
 
 Lautour, goods which were in the possession of Beavan under a bill 
 of sale from Lautour, notwithstanding notice of the bill of sale. The 
 .sheriff then applied to Antrobus and to Beavan severally for an indemnity 
 before preceeding further, but both refused. Beavan sued the sheriff in 
 trespass for the seizure. Rule nisi to stay proceedings till the sheriff 
 should have been indemnified. Upon cases being shown, Tindall, C. J. 
 .said: This case falls within the general principle, that the .sheriff'is not, at 
 his own expense, to fight the cause of the contending parties. The proceed- 
 ings must be staid till an indemnity has been given, and without pavment 
 of the plaintiffs copts, because the plaintiff has refused to indemnify when 
 requested. Rule absolute. Beavan v. Dawson, 6 Bingli. 566. Vide, also 
 Keighiley v. Bircli, 3 Camph. 523 ; Bai-nardy. Leigh, 1 Stark. R. 43 ; King v. 
 Bridges, 7 Taunt. 294. 
 
 Case in New York, against a sheriff" for a false return of nulla bona to a 
 fi. fa. The defence in part was, that a third person claimed the goods, 
 and that an indemnity was thereupon rec{uired, but not given. Per Curiam. 
 It was the duty of the sheriff to make the levy without any indemnity 
 whatever, as he found the goods in the hands of the defendant in the exe- 
 cution ; and he would not have been liable to an action as a trespasser, if 
 he had made such levy. The goods were pointed out to bin; as the goods 
 of the defendant in the execution ; he was exercising acts of ownership over 
 them; they were in his exclusive custody and possession; and the sheriff 
 would have incurred no peril from the act of levying. If, after the officer's 
 first duty was performed, a claim to the property had been interposed, then 
 a jury .should have been called to determine the right of property. If by 
 the inquisition, it should be determined that the right of property was in the 
 claimant, then the return upon the execution, should be nulla bona ; and 
 such a finding, although it would not be conclusive upon the question of 
 property, would nevertheless justify such a return. Should the jury de- 
 clare the property to be in a third person, then the sheriff could not be com- 
 pelled to proceed further, without a full irdemnity. But, in the first 
 instance, he was bound to make a levy, and there is nothing in this case to 
 excuse his neglect in that particular. The sheriflT need never be in diffi- 
 culty upon this point; for if the title appears doubtful, or the proceedings 
 hazardous, the Court upon application, would extend the time for the 
 making of his return ; or he might file a bill of interi)leader, and stay all 
 proceedings against him, until the right of property was settled. Indeed, 
 the conflicting claimants could l)e compelled to litigate their claims; and a 
 sheriff', taking the proper course, would never be subjected to damage of 
 any kind. In this case the sheriff' refused, or, at all events, neglected to 
 make the levy ; and if the plaintiff can show that the goods, found in the 
 
 Vol II.— 6 (81)
 
 69-70 SLTREME COURT OF IXDIAXA. 
 
 Bosley c. Farquar and Another. 
 
 possession of the defendant in the execution, were in truth his property, he 
 i« entitled to recover. Williams v. Lowndes, 1 Hall, 579. 
 
 (2) There is a difference of opinion in the English books as to the 
 effect of such an inquisition. Crose, J. and Kexyox, C. J., have expressed 
 an opinion, that the inquisition would justify the sheriff in returning, if so 
 found, that the defendant has no goods within the county ; or that, if it be 
 found that he has, the inquisition will mitigate the damage, in an action of 
 trespass, should the goods turn out not to be the defendant's. Farr v. New- 
 man, 4 T. R. 633, 648; Roberts v. Thomas, 6 id. 88. But it has been since 
 decided, that the inquisition finding the goods to belong to a third person, 
 is not admissible evidence for the sheriff, even in mitigation of damages, in 
 an action against him for a false return of nulla bona. Glossop v. Pole, 3 
 M. & S. 17o. Though in trespass against the sherifi'by a third person 
 
 claiming the goods, the inquisition, said the Chief Justice, in the case 
 [••■70] last-cited, might perhaps he evidence as to *whetherthe sheriff had 
 acted maliciously. Ibid. It is also held that an inquisition made 
 bv the sheriff's jury to ascertain to whom the property of goods taken 
 under a fi. fa. belongs, though found in favor of a stranger claiming the 
 goods, is not admissible evidence in an action of trover for the goods, 
 brought by the claimant against the sheriff. Latkow v. Eamar, 2 H. Bl. R. 
 437. 
 
 The Indiana law is as follows: When any person, not the execution- 
 defendant, files Nvith the officer issuing the execution a claim in writing to 
 the goods levied on, supported by an affidavit, the officer who has levied on 
 the property, on being notified of the filing of such claim and affidavit, 
 summons three householders to determine the right of property. The trial 
 is held before a justice of the peace of the township in which the property 
 is found. An appeal lies from the decision of these triors to the Circuit 
 Court of the county. In all cases where a trial of the right of property 
 has been had, the decision, whilst unreversed, is conclusive between the 
 parties. No officer is liable to any prosecution for taking the goods of a 
 stranger in execution if found in the defendant's possession, unless he be 
 informed of the ownership therein previously to the execution-sale. R. C. 
 1831, pp. 237, 238. 
 
 (3) Indictment for a conspiracy. The evidence for the prosecution not 
 being closed until 11 o'clock at night, the trial was adjourned till the next 
 morning, and the jury were permitted by the judge to retire to their fami- 
 lies for the night. On the next morning the jury assembled, and the trial 
 was concluded. Verdict of guilty against three defendants. Motion for a 
 rule to show cause why anew trial should not be granted, in consequence 
 of the dispersion of the jury without the defendant's knowledge. Abott, 
 C. J., after stating that the dispersion of the jury did not vitiate the ver- 
 dict, and that cases similar to the present had of late years frequently 
 occurred, observed : "It is said, that in some of those instances the ad- 
 journment and dispersion of the jury have taken place with the consent of 
 the defendant. I am of opinion that that can make no difference. I think 
 the consent of the defendant in such case ought not to be asked ; and my 
 reason for thinking so is, that if that question is put to him, he can not be 
 supposed to exercise a fair choice in the answer he gives, for it must be 
 supposed that he will not oppose any obstacle to it; for if he refu.ses to 
 accede to such an accommodation, it will excite that feeling against him, 
 which every person standing in the situation of a defendant would wish to 
 avoid. I am also of opinion, that the consent of the judge would not make, 
 in such case, that lawful which was unlawful in itself ; for if the law 
 requires that the jury shall at all events be kepi together until the close of 
 the trial for a misdemeanor, it does not appear to me that the judge would 
 have any power to dispense with it. The only difference that can exist 
 
 (82)
 
 MAY TERM, 1827. 70-71 
 
 Harris, Administratrix, v. M'i^addin. 
 
 between the fact of a jury separating with or without the approbation of 
 the judge, as it seems to me, is this, that if it be done without the consent 
 or appi-obation of the judge, expressed or implied, it may be a misdemean- 
 or in them, and they may be liable to be punished ; whereas, if he gives his 
 consent, there will be no such consequence of a separation. But thougii 
 it may be a misdemeanor in them to separate without his consent, it will 
 not avoid the verdict in a case of this kind, as it Avould if the law required 
 the jury to be absolutely kept together. Now, it is not surmised in this 
 case, that during the night (for it was during night only that the separa- 
 tion took place) any attempt was made to practice upon the jury. If any 
 thing like that could have been shown, the Court would require that mat- 
 ter to be investigated. The other judges expressed similar opinions ; and the 
 rule was refused. The King v. Wool/, 1 Chitt. R. 401. Vide Barloiv v. The 
 State, Nov. term, 1827, post and note. Smith v. Thompsmi, 1 Cowen, 221 and 
 note. 
 
 [*71] *Harris, Administratrix, v. M'Faddin. 
 
 Officer — -Justified by Writ. — The warrant of a justice of the peace, is- 
 sued under the .statute of 1824, commanding the constable to distrain for 
 rent, — is a justification to the officer in an action of replevin by the ten- 
 ant, independently of the landlord's claim (a). 
 
 S.\ME — Practice. — If the constable justify under his warrant, and obtain 
 judgment on a demurrer to his plea, he is entitled to a return of the 
 goods. 
 
 Landlord and Tenant — Distraint. — If the tenant wish to contest the 
 landlord's right to distrain, to rely, for example, on 7ion tenuit or riens in 
 urrear, — he should institute his suit against the landlord (6). 
 
 Demurrer — Joinder. — The defendant, on a demurrer to his plea, obtained 
 a judgment, without having joined in a demurrer : Held, that the plain- 
 tiff could not assign the want of the joinder for error. 
 
 APPEAL from Vigo Circuit Court. — This was an ac- 
 tion of replevin by Harris, administratrix, against M'Fad- 
 din. The declaration is in the usual form. The defend- 
 ant pleaded specially, that he took the goods by virtue 
 of a distress warrant, directed to him as constable of the 
 township, issued by a justice of the peace, commanding 
 him to distrain the goods of the plaintift" for one year's 
 rent due to Modisett, the plaintiff's landlord. The war- 
 rant is set out in the plea. General demurrer to the plea, 
 and judgment for the defendant, not only of nil capiat 
 per breve, but also for a return of the goods. 
 
 (a) 2 Ind. 579. (6) 5 Blkf. 489. 
 
 (83)
 
 71-72 SUPREME COURT OF INDIANA. 
 
 Harris, Adnainistratrix, v. M'Faddin. 
 
 Blackford, J. — In this case, if the defendant be viewed 
 as a bailiff making cognizance, the plea is defective for 
 not averring the right of the landlord. We conceive, 
 however, that this plea is to be tested by a different prin- 
 ciple from that which governs a cognizance. The statnte 
 of 1824, p. 160, has changed the practice. The landlord 
 can not in person, or by his bailiff, take the goods. He 
 must go before a justice of the peace of the township, 
 and, on complaint under oath, obtain a warrant com- 
 manding the constable, to whom it is directed, to make 
 the distress. This warrant, issued by a competent author- 
 ity, is obligatory on the officer, and must be a justifica- 
 tion to him independently of the landlord's claim. Rob- 
 erts et al. V. Tennell, 4 LittelFs R. 286. The judgment of 
 the Circuit Court, therefore, upon the demurrer, that tlie 
 plaintiff take nothing by his writ, was correct. 
 
 We are also of opinion, that no objection can be made 
 to the award of a return of the goods. The plea 
 [*72] shows that the ^original taking by the defendant 
 was lawful, and nothing appears of record incon- 
 sistent with the continuance of his right to the possession. 
 
 If the plaintiff" wished to contest the right of the land- 
 lord to distrain — to rely, for example, on non tenuit, or 
 rie7is in arrear — he should have instituted his suit against 
 the landlord. It is against him or his bailiff, not against 
 the officer of the law, that in cases of distress for rent, 
 the person distrained on, when he replevies, gives bond 
 for the due prosecution of his suit. 
 
 The want of a joinder in demurrer is assigned for error. 
 There is nothing in this objection. The plaintiff had a 
 right to rule the defendant to join, or to add the joinder 
 himself, and can not now for the first time object to the 
 omission. 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Judah, for the appellant. 
 
 (84)
 
 MAY TERM, 1827. 72-73 
 
 Lutz and Another v. Lutz. 
 
 LuTz and Another v. Lutz. 
 
 Will — Constrxtction — Household Goods. — A testator, commencing his 
 will by expressing an intention to dispose of all his worldly estate, de- 
 vised to his wife all his lands and tenements for life, together with all 
 his household goods and chattels. If his wife married again, she waa 
 still to enjoy the real estate, but without power to dispose thereof except 
 by leasing it for a term not exceeding one year at a time, [f she mar- 
 ried and died without issue, the real estate was to descend to a nephew 
 of the testator ; but if she had issue, the estate was to descend to such is- 
 sue. The testator died, having made no further disposition of his prop- 
 erty, and leaving no children. 
 
 On a claim by the testator's brothers, his heirs at law. Held, that all the 
 personal estate including moneys and obligations passed, by the will, to 
 the widow of the deceased. 
 
 Same — Intention. — The construction of a will depends, not so much upon 
 any rigid principle of law, as upon what appears by the will to have 
 been the testator's intention (o). 
 
 ERROR to the Clark Circuit Court. 
 
 Scott, J. — Casper Lutz, in his last will and testament, 
 bequeathed to his wife Catharine all his lands and tene- 
 ments, with all the beneiits and profits thereunto belong- 
 ing, to be freely possessed and enjoyed by her during her 
 natural life, together with all his household goods and chat- 
 tels; and made and ordained her his executrix, and his 
 brother Henry Lutz, executor. A further provision 
 [*73] of the will is, that should his said wife ^Catharine 
 marry after his decease, she should still possess and 
 enjoy his real estate; but should have no power to dis- 
 pose of the same, or to lease it for more than one year at 
 a time. And should she die without issue of her body, 
 then in that case, the said real estate should descend to 
 Alexander Joseph Lutz, the son of his brother, Henry 
 Lutz. But in case the said Catharine should have a 
 child or children, then the said real estate should descend 
 to the said child or children; and the testator directs his 
 executors to collect his debts, &c. On the 6th of Sep- 
 
 («) 7 Ind. 282 ; 16 Id. 479 ; 35 Id. 116 ; 39 Id. 58. 
 
 (85)
 
 73-74 SUPREME COURT OF INDIANA. 
 
 Lutz and Another r. Lutz. 
 
 tember, 1818, Casper Lutz died without children, and his 
 brothers, Henry and Jacob, filed their bill in the Circuit 
 Court, complaining that the said Catharitie, in violation 
 of the provisions of the said will, retained the exclusive 
 possession and control of the goods, chattels, moneys, and 
 obHgations of said estate, except about 300 dollars ; and 
 stating, also, that the said moneys and eft'ects do not pass 
 to the said Catharine by the will; but that they descend 
 to the complainants as the brothers and legal heirs of the 
 deceased. There was a demurrer to the bill, and decree 
 in favor of the defendant. 
 
 The only question presented for our consideration is, 
 whether the moneys and obligations go to the widow or 
 descend to the heir at law, as property not disposed of by 
 the will? 
 
 This is not an instrument in which the intention of the 
 maker must yield to an}'^ rigid principle of law. The in- 
 tention of the testator, in such cases as the present, must 
 prevail. As this instrument was evidently not drawn by 
 a skillful hand we must seek for the intention of the tes- 
 tator, rather from its general features than from a strict 
 grammatical construction of language. The whole diffi- 
 culty seems to have arisen from the word household being 
 used in that clause of the will, which disposes of the per- 
 sonal estate. If we suppose the word all as having ap- 
 plication to the word chattels, as well as to household goods, 
 then, by supplying the ellipsis, the bequest would include 
 all his household goods, and all his chattels; which would 
 be all his personal estate. Or, if the word household be 
 rejected as useless and unmeaning, the same result fol- 
 lows: and we are the more strongly inclined to believe 
 that this'was the intention of the testator, from his clear 
 expression, at the commencement of the instrument, of 
 his intention to dispose of the word)}' estate where- 
 [*74] with it had pleased God to *bless him in this life. 
 Comparing this declaration of the testator's inten- 
 tion, with his subsequent distribution, we can not hesi- 
 
 (86)
 
 jVIAY term, 1827. 74 
 
 Parks, Administrator, r. Perry, in Error. 
 
 tate to believe that his design, in the clause above alluded 
 to, was to give his wife all his personal estate; and not to 
 leave the moneys and bonds, forming so important a part 
 of it, undisposed of (1). We therefore think the decision 
 of the Circuit Court correct. 
 
 Per Curiam. — The decree is affirmed with costs. 
 
 Thompson and Nay lor, for the plaintiffs. 
 
 Hawk, for the defendant. 
 
 (1) "The first and great rule in the exposition of wills, to which all other 
 rules must bend, is, that the intention of the testator expressed in his will 
 shall prevail, provided it be consistent with the rules of law. Doug. 322. 
 1 Bl. R. 672. This principle is generally asserted in the construction of 
 every testamentary disposition. It is emphatically (he irill of the person 
 who makes it, and" is defined to be ' the legal declaration of a man's inten- 
 tions, which he wills to be performed after his death.' 2 Bl. Comm. 499. 
 These intentions are to be collected from his words, and ought to be carried 
 into eflfect if they be consistent with law. 
 
 " In the construction of ambiguous expressions, the situation of the parties 
 may very properly be taken into view. The ties which connect the testator 
 with his legatees, the affection subsisting between them, the motives which 
 may reasonably be supposed to operate with him, and to influence him in 
 the disposition of his property, are all entitled to consideration in expound- 
 ing doubtful words, and ascertaining the meaning in which the testator 
 used them." Per Marshall, C. J., in Smith v. Bell, 6 Peters, 68, 75. 
 
 Parks, Administrator, v. Perry, in Error. 
 Will— Priority of Legacies. 
 
 A WILL, after directing the personal estate to be sold, 
 and the real estate leased until the rents, with the pro- 
 ceeds of the sale of the personal property, should be suf- 
 ficient to pay the after-named legacies, contained tlie fol- 
 lowing provision : " I will and bequeath to my sister Isa- 
 bel the sum of 50 dollars annually, to be paid out of the 
 rents of the place and the proceeds of the sale of my per- 
 sonal property, and continued until the following sums 
 are paid." The will then gave several legacies, and di- 
 rected that after their payment, the real estate should be 
 sold and a distribution made. 
 
 Held, that in each ^-ear the 50 dollars were to be paid 
 to Isabel, before any payment to the other legatees. 
 
 (87)
 
 75 SUPREME COURT OF INDIANA. 
 
 Neighbors v. Simmons. 
 
 [^i'vS] *Neighbors V. Simmons. 
 
 Written Contract — Statute of Limitations. — At the foot of an account 
 containing several items, charged in 1817, there was the following ac- 
 knowledgment : "I acknowledge the above account to be just. — Thos. 
 Neighbors." Held, that this acknowledgment was a written contract 
 which, under the act of assembly, was not barred by the statute of limit- 
 ations (o). 
 
 ERROR to the M:irio;i C'lii-uit Court. 
 
 HoLMAN, J. — Assumpsit by Simmons against Neighbors. 
 The declaration states that the defendant, on the 14th of 
 April, 1817, made his certain acknowledgment in writing, 
 whereby he acknowledged that he was indebted to the 
 plaintiff in the sum of 112 dollars and 62 cents, whereby 
 he became liable, &c., and in consideration thereof prom- 
 ised to pay, &c. Plea, non-assumpsit within five years. 
 Deiimrrer and judgment for the plaintiff. 
 
 The contract, on which the action is founded, is an ac- 
 count of sundry items in favor of Simmons against Neigh- 
 bors, amounting to 112 dollars and 62 cents; the first item 
 of which bears date the 20th of January, 1817, and the 
 last item the 14th of April, in the same year; at the foot 
 of which there is this writing: " I acknowledge the above 
 account to be just. Thos. Neighbors." The act of as- 
 sembly provides, that no statute of limitations shall be 
 pleaded as a bar, or operate as such, to any action founded 
 on an instrument or contract in writing, whether the same 
 be sealed or unsealed (1). We are of opinion that the 
 written acknowledgment of this account forms a contract 
 m writing; and that the plea of the statute of limita- 
 tions, in this case, was inadmissible. 
 
 With the refusal of the Circuit Court to continue the 
 cause we have nothing to do: the affidavit to continue 
 the cause is no part of the record. 
 
 (a) See 12 Ind. 174 ; 3 Id. 275. 
 
 (88) •
 
 MAY TERM, 1827. 75-76 
 
 Maguire v. Nowland. 
 
 Per Curiam. — The judgment is affirmed with 1 per cent. 
 damages and costs. 
 
 Sweetser and Wick, for the plaintiff. 
 Fletcher, for the defendant. 
 
 (1) R. C. 1824, p. 291. Ace. E. C. 1831, p. 401. 
 
 [*76] *Maguire v. Nowland. 
 
 Statutes — Prospective — Jurisdiction. — The act of 1827, giving the Su- 
 preme Court jurisdiction in certain cases decided by the Circuit Court on 
 appeal from the judgment of a justice of the peace, is prospective only, 
 and does not apply to cases determined by a justice before the taking ef- 
 fect of the act (a). 
 
 ERROR to the Marion Circuit Court. 
 
 Blackford, J. — This judgment of the Circuit Court 
 was in a case from a Justice's Court. Previously to the 
 late act of the legislature, approved the 22d of January, 
 1827, this Court had no jurisdiction of such cases. That 
 act makes some alterations in the mode of proceeding be- 
 fore justices of the peace; and, where the judgment of 
 the Circuit Court is in a case where the judgment of the 
 justice exceeds 20 dollars, the act gives this Court juris- 
 diction of the cause. We are of opinion, however, that 
 this act of the legislature is prospective only, and was not 
 intended to embrace any cases, except where the rendi- 
 tion of the justice's judgment is subsequent to the taking 
 effect of the statute. The judgment of the justice, in the 
 case before us, was rendered long before the taking effect 
 of the act above referred to (1). 
 
 Per Curiam. — The cause is dismissed for want of juris- 
 diction. 
 
 Sweetser and Wick, for the plaintiff. 
 
 Fletcher, for the defendant. 
 
 (a) See 7 lud. 59 ; 16 Id. 84. 
 
 (89)
 
 76-77 SUPREME COURT OF INDIANA. 
 
 Jamison r. Buckner. 
 
 (1) The law on the subject is now as follows: " Writs of error issuing 
 from, and appeals made to the Supreme Court, shall extend to all judg- 
 ments and decrees, given ijy any of the inferior Courts of record, except 
 such judgments as have been or may be rendered by any of the inferior 
 Courts, confirming or reversing the judgment of any justice of the peace, 
 where the amount in controversy, inclusive of interest and costs, is under 
 the sum of twenty dollars: Provided, that in all cases where judgment is 
 rendered, affirming or reversing the judgment of any justice of the peace, 
 on an appeal to any inferior tribunal, where the amount in controversy, in- 
 clusive of interest and costs, is under fifty dollars, if a supersedeas shall be 
 refused, the Supreme Court shall have no jurisdiction." K. C. 1831, p. 149. 
 
 [*77] ^Jamison v. Buckner. 
 
 Consideration — Failure of — Common Law Kemedy. — The act author- 
 izing a defendant, in actions of assumpsit, to plead a want or failure of 
 consideration specially, is cumulative, and does not take away the party's 
 right, existing before the act, to avail himself of such a defence under the 
 general issue (a). 
 
 ERROR to the Marion Circuit Court. Assumpsit by 
 Buckner against Jamison. Plea, non-assumpsit. Ver- 
 dict and judgment for the plaintiff. 
 
 Scott, J. — On the general issue, in an action for as- 
 sumpsit, the Court refused to hear evidence, on the part 
 of the defendant, of a failure of consideration. By our 
 statute, regulating the practice in suits at law, the de- 
 fendant is authorized to allege the want or failure of con- 
 sideration, by special plea. R. C. 1824, p. 295 (1). Prior 
 to the statute, evidence of that fact could have been 
 given on the general issue. The statute is cumulative, 
 and does not take away the right which existed prior to 
 its enactment. 
 
 Per Cariayn. — The judgment is reversed with costs. 
 
 Fletcher^ for the plaintiff. 
 
 Gregg, for the defendant. 
 
 (1) Accord. R. C. 1831, p. 405. 
 
 (a) See 4 Blkf. 529-556; 5 Id. 334 (note). 
 
 END OP^ MAY TERM, 1827. 
 
 (90)
 
 [*78] * CASES 
 
 ARGUED AND DETERMINED 
 
 IN THE 
 
 SUPREME COURT OF JUDICATURE 
 
 OF THE 
 
 STATE OF INDIANA, 
 
 AT INDIANAPOLIS, NOVEMBER TERM, 1827, IN THE TWELFTH YEAR OF 
 THE STATE. 
 
 White, Administrator, v. Rankin and Others. 
 
 Appearance — Waiver. — The appearance of a defendant on the execution 
 of a writ of inquiry, without objecting to the previous proceedings, cures 
 any irregularities as to the time when the capias was executed or the dec- 
 laration filed (a). 
 
 Error — Harmless. — The awarding of a writ of inquiry after the defend- 
 ant's failure to appear on being called, without the previous entry of an 
 interlocutory judgment, is a mere informality, and can not be assigned 
 for error. 
 
 Parties — Descriptio Personarum. — A declaration stated that A., B. and 
 C, county commissioners of the county of Scott, complained of the ad- 
 ministrator of D. for money had and received by the intestate to the use 
 of the plaintiffs, and which he had not paid to the plaintiffs : Held, that 
 the words, " county commissioners of the county of Scott," were only a 
 descriptio personarum. 
 
 ERROR to the Scott Circuit Court. — Assumpsit by 
 Rankin, Hogland, and Mattliews, commissioners of Scott 
 county, against White, administrator of White, for money 
 
 («) 9 Ind. 6. 
 
 (01)
 
 78-79 SUPREME COURT OF INDIANA. 
 
 White, Administrator, v. Kankin and Others. 
 
 bad and received by tbe intestate to tbe use of tbe plain- 
 tiffs. The defendant, at the term to which the writ was 
 returnable and at which the declaration was iiled, failing 
 to appear on being called, and the Court being satislied 
 that the process had been served, a writ of inquiry was 
 awarded to inquire of the damages, &c. At a subsequent 
 term, to which the cause had been continued, and at 
 which the defendant appeared, the damages were 
 [*79] assessed and *final judgment was rendered for the 
 plaintiffs. The judgment was as follows: "It is 
 therefore considered by the Court, that the plaintiffs re- 
 cover of the said defendant, as administrator as aforesaid, 
 the sum of, &c., to be levied, &c." 
 
 Holm AN, J. — The first error assigned and relied on in 
 this case, is, that the writ of inquiry was improperly 
 awarded. It is said, that the capias was not executed ten 
 days before the term of the Court in which the writ of 
 inquiry was awarded; and the declaration, it seems, was 
 not tiled when the capias issued, but was filed in open 
 Court, and but one day before the defendant was called, 
 and the writ of inquiry awarded; and there was no inter- 
 locutory judgment. The awarding of the writ of inquiry, 
 without an interlocutory judgment, was merely informal. 
 Had the writ l)een executed the same term in which the 
 declaration was thus filed, the defendant might have had 
 some cause of complaint; but the cause was continued 
 for several terms; and before the inquest of damages, the 
 defendant appeared by his counsel. Having thus ap- 
 peared and raised no objections to the proceedings in the 
 cause, all previous irregularities are thereby cured. 
 
 A second train of objections grows out of the declara- 
 tion. The declaration states that Samuel Rankin, Spen- 
 cer Hogland, and John Matthews, county commissioners 
 of the county of Scott, complain of James V. "White, ad- 
 ministrator of James L. White, deceased, of a plea of 
 trespass on the case; for that whereas James L.White, in 
 his life time, was indebted to the plaintifis in the sum of 
 
 (92)
 
 JN'OVEMBER TERM, 1827. 
 
 White, Administrator, v. Eankin and Others. 
 
 100 dollars, for so much money, before that time, and 
 had received by him to the use of the said plaintiffs; and 
 the breach assigned is, that neither the intestate, nor 
 the administrator, had paid the said sum to the said 
 plaintiffs. 
 
 It is here objected, first, that the plaintiffs sued as a 
 corporation, and appeared by their attorney at law, in- 
 stead of their attorney in fact; secondly, that during the 
 pendency of this suit, the powers and duties of the county 
 commissioners were transferred, by act of assembly, to 
 the board of justices; and that the commissioners ceased 
 to have any legal existence, and could not therefore 
 maintain the suit; thirdly, that the commissioners could 
 sue for money due to the county only, which money is 
 always payable to the county treasurer, and that there- 
 fore the breach, in this case, should have been, 
 [*80] that the ^money was not paid to the county treas- 
 urer. All these objections are answered together 
 by a reference to the declaration. The plaintiffs in the 
 Circuit Court do not appear to have sued as a corpora- 
 tion, nor for moneys due to the county. It is true that 
 they style themselves county commissioners, but the}' do 
 not state that the money is due to them as commissioners. 
 They lay it as if due to them in their own right, for 
 money had and received, not to the use of the county, 
 but to their own use; and the judgment is given to them 
 in their own right, and not for the use of the county. If 
 this money belongs to the county, the way is open for 
 the county to obtain it; but there is nothing in this 
 record to show that the county has any cUiim upon it; 
 so that the style of county commissioners, adopted b}^ the 
 plaintiffs, can only be considered as a deseriptio personarum. 
 
 Per Curiam. — The judgment is affirmed with b jper cent. 
 damages. 
 
 Thornton, TJwmjJson and Howk, for the plaintiff". 
 Nelson, for the defendants.
 
 80-81 SUPREME COURT OF INDIANA. 
 
 Test r. Devers. 
 
 Test v. Devers, 
 
 Trespass — Complaint — Cured by Verdict. — The complainant, in an ac- 
 tion of forcible entry and detainer, stated that the defendant with force 
 and arms, unlawfully and forcibly entered upon the plaintiff's land (par- 
 ticularly described), and him the plaintiff with force and arms did expel 
 and unlawfully put out of possession: Held, that this complaint could 
 not be objected to after verdict, for not showing more particularly that 
 the plaintiff had peaceable possession of the premises before the injury 
 complained of («). 
 
 iSame — Verdict. — The verdict in the Circuit Court for the plaintiff, on ap- 
 peal, in a case of forcible entry and detainer, must, as on the trial before 
 the justice, be signed by all the jurors. 
 
 ERROR to the Rush Circuit Court. 
 
 Blackford, J. — Devers tiled a complaint of forcible 
 entry and detainer, before two justices of the peace, 
 against Test, and obtained a verdict and judgment. Test 
 appealed to the Circuit Court. The verdict of the jury 
 there was as follows : " We of the jury find for the plain- 
 tiff," The Circuit Court rendered judgment of restitu- 
 tion on the verdict. Test has brought the case before 
 this Court by a writ of error. The following among 
 others, are the errors assigned: first, the complaint 
 [*81] filed *is insufficient; secondly, the verdict should 
 have pursued the form prescribed by the statute. 
 
 The objection to the first count in the complaint is, that 
 it contains no averment that the plaintifl' had the peace- 
 able possession of the premises, previously to the injury 
 complained of. As to that, the complaint states, that the 
 defendant with force and arms, unlawfully and forcibly, 
 entered upon the plaintiff's land, (particularly described,) 
 and him, the plaintiff, with force and arms did expel, and 
 unlawfully put out of possession. This we consider amply 
 sufiicient after verdict. Whether the objection would 
 have had any weight, had it been previously made, no 
 opinion need be given. 
 
 (a) 53 Ind. 279. 
 
 (94)
 
 NOVEMBER TERM, 1827. 81-82 
 
 Test I'. Devers. 
 
 There is another count in the complaint, which is also 
 objected to; but as the iirst is good, it is not material iu 
 deciding this case, to examine the other. 
 
 The objection made to the verdict, depends upon a mere 
 question of practice. If the form, given by the statute 
 in cases of forcible entry and detainer, must be substan- 
 tially pursued in the Circuit Court, as well as before the 
 justices, then this verdict is insufficient. In Moore v. Read, 
 May term, 1822, we determined that a verdict in the Cir- 
 cuit Court, pursuant to the form in the statute, was cor- 
 rect (1). The act, prescribing the form of the oath to the 
 jury, and that of the verdict, the nature of the judgment, 
 and the form of the writ of restitution, in these cases be- 
 fore justices, authorizes an appeal to the Circuit Court, 
 and directs that the Court shall hear and determine the 
 case, agreeably to the true intent and meaning of that 
 statute (2). The legislature probably intended, that the 
 subject of inquiry for the jury, the forms of the verdict, 
 judgment, and writ of restitution, in the Circuit Court, 
 should be the same in substance as those before the jus- 
 tices, changing only what is necessary to be changed. 
 Indeed no reason is perceived, why more particularity 
 should be required in the one case than in the other; or 
 why the nature of the inquiry, of the verdict, judgment, 
 and execution, should not be the same in both. Consid- 
 ering, as we do, that that similarity is required by the 
 statute, which is the only authority for this proceeding in 
 forcible entry and detainer, the verdict in the present case 
 must be deemed, in substance, defective. According to 
 the statute, no judgment can be rccdered in these 
 [*82] cases for the *plaintiff, unless the verdict be signed 
 by all the jurors. This verdict is not so signed; 
 and for that reason alone, were there no other, the judg- 
 ment rendered upon it can not be supported (3). 
 
 Per Curiam. — The judgment is reversed, and the ver- 
 dict set aside, with costs. Cause remanded, &c. 
 
 (95)
 
 82-83 SUPREME COURT OF mDIANA. 
 
 Cone V. Cotton and Another. 
 
 Fletcher, for the plaintiff. 
 
 Sweetser and Smith, for the defendant. 
 
 (1) Vol. 1 of these Rep. 177. 
 
 (2) R. C. 1824, p. 212. Accord. R. C. 1831, p. 265. 
 
 (3) Accord. Ward et al. v. Ocrme et al.. May term, 1834. 
 
 Cone v. Cotton and Another. 
 
 Oyer— Pkofert — Pleading. — Although oyer of a record is not demanda- 
 ble, yet if profert of the record of a judgment on which the suit is brought 
 be made and oyer granted, the defendant may demur if the judgment be 
 of no validity. So if the judgment be of a justice's Court in another 
 state, which is not a Court of record. 
 
 Foreign Judgment — Pleading — Jurisdiction. — A scire facias was issued 
 by a justice of the peace in Ohio on the transcript of a judgment of an- 
 other justice there ; and, on a return of the writ " not found," judgment 
 was rendered for the plaintiff. On that judgment, an action was brouglit 
 in a justice's court of this state. Held, that the judgment, having been 
 rendered without service of the writ, or the return of two nihils, would 
 not, on common law principles, support the action. Held, also, that if 
 the judgment was authorized, by a statute of Ohio, on one return of "not 
 found," the declaration should have shown that fact («). 
 
 Same — Jurisdiction — Proof. — The constitution of the United States, re- 
 quiring full faith and credit to be given in each state to the judicial pro- 
 ceedings of every other state, does not apply to a judgment which has 
 been rendered without the defendant's having had legal notice of the suit. 
 
 ERROR to the Shelby Circuit Court. 
 
 HoLMAN, J. — Debt on a judgment of a justice of the 
 peace of the state of Ohio. The plaintifl:" made profert 
 of an authenticated transcript of said judgment. The de- 
 fendants craved oyer of the transcript which was granted- 
 And in this, it is said by the plaintiff that the Circuit 
 Court erred. But it should be remembered, that, although 
 oyer of record is not properly demandable, 3'et, if profert 
 is made, and oyer granted, no error is committed. 
 [*83] So as it respects the transcript of this *judgment. 
 It is not a record ; but as both parties have treated 
 
 (a) 34 Ind. 531 ; 63 /d. 137 ; 18 Jd. 156 ; 8 Jd. 453. 
 
 (96)
 
 NOVEMBER TERM, 1827. 83 
 
 Cone V. Cotton and Another. 
 
 . it as a record, we see no reason that either has to com- 
 plain ; and more especially in a case like this, where the 
 sufficiency of the judgment to support the action will be 
 the same, whether it is adjudicated upon a demurrer to 
 the declaration, or when shown as evidence to the jury. 
 The defendants having obtained oyer of the transcript, 
 demurred and had judgment. 
 
 The transcript is as follows: Charles Cone, Sen., v. Wil- 
 liam Cotton, Sen., and William Cotton, Jan., (bail). In 
 transcript. Transcript from the docket of John Garard, 
 a late justice of the peace, in and for the township of 
 Crosby, and county of Hamilton, and state of Ohio. Judg- 
 ment entered by J. Garard, Esquire, on the 2d of Febru- 
 ary, 1821, against defendant for the sum of 43 dollars and 
 44 cents. The same had been taken by transcript from 
 the docket of Joab Comstock, a late justice of the peace 
 in and for the township of Crosby, and county of Hamil- 
 ton, state of Ohio. Which justices, at this time, are both 
 out of office. The date of the judgment entered by Joab 
 Comstock, Esquire, is 30tli of March, 1820. April 29th, 
 1825, I issued a scire facias against both defendants, re- 
 turnable on the 4th May next. Scire facias returned on 
 the 4th May. Defendants not found. May the 4th, I 
 give judgment against the defendants in favor of the 
 plaintiff for the sum of 54 dollars and 34 cents, and costs 
 of suit. — John D. Moore, J. P. 
 
 To this is annexed the certificate of said Moore, that 
 the foregoing is a true transcript of the proceedings had 
 before him, and of the judgment entered by him. This 
 is followed by a certificate of the clerk that Moore was a 
 regular justice of the peace; the certificate of the presid- 
 ing judge, &c. This authentication does not extend to 
 the official acts of Garard and Comstock; but as this ac- 
 tion is not founded on the judgment given by either of 
 them, but on the judgment given by Moore on the scire 
 facias, it is not directly material that we should have con- 
 clusive evidence that either Garard or. Comstock acted 
 A^OL. II.— 7 (97)
 
 83-84 SUPREME COURT OF IXDIANA. 
 
 Cone V. Cotton and Another. 
 
 officially. The judo'ments given by tliem may be consid- 
 ered as only recited in the scire facias, and requiring no 
 other proof, or authentication, than is required of any 
 other judgment so recited. 
 
 This transcript gives no precise information of 
 [*84] the object of *this scire facias. But whatsoever 
 may have been the purpose to be effected by it 
 within the compass of the common law, it must be regu- 
 lated by the principles of the common law. Testing this 
 scire facias by common law principles, we iind that it has 
 not been executed in such a way as would authorize a 
 judgment. AYhen a scire facias has not been executed 
 by personal service, the common law requires that there 
 should be a return of tw^o " nihils; " or, what in this coun- 
 try may be considered as equivalent, to returns of " not 
 found." This scire facias was not executed by personal 
 service, and there was but one return of "not found;" 
 which would not warrant the judgment. Even if that 
 provision in the constitution of the United States, that 
 requires us to give full faith and credit to the judicial pro- 
 ceedings of other states, extended to the judgments of 
 justices of the peace, it could not require us to consider 
 such judgments valid, if given without notice, or what 
 amounts to the same thing, without legal notice. See 1 
 Stark. Ev. 214, 215 ; Bissell v. Bricjgs, 9 Mass. R. 462 ; 
 and the cases cited in Borden v. Fitch, 15 Johns. R. 121 
 (1). If we take it for granted, that constructive notice 
 by two returns of " nihil," as authorized by the common 
 law, would be sufficient; yet less than this can by no 
 means suffice. If there is a statute of Ohio, authorizing 
 a justice of the peace to give judgment on a scire facias, 
 on one return of "not found," we know nothing of it, 
 and can presume nothing about it. If the existence of 
 such a statute had been averred in the declaration, we 
 might have adjudicated upon its effect; as it is, w^e have 
 nothing to do with it (2). As the case stands the judg- 
 ment on which the plaintiff' relies having been given with- 
 
 (98)
 
 NOVEMBER TERM, 1827. 85-85 
 
 Sackett v. Wilson, Executrix. 
 
 ou-t notice, either personal or constructive, is, on common 
 law principles, a mere nullity; and, being unaided by any 
 averment, forms no cause of action whatever. If oyer of 
 this transcript had not been granted, and the cause had 
 passed to a jury on the issue of nil debet, and the tran- 
 script had been otlered in evidence, it must have been re- 
 jected, as affording no evidence of a demand against the 
 defendants; so that the result would have been as it now 
 is — the action would have been unsupported. 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Wick, for the plaintiff. 
 Fletcher, for the defendants. 
 
 [*85] *(1) Vide Holt v. Alloway, post, this term, and note. 
 
 (2) Vide Stout v. Wood, Vol. 1 of these Rep. 71 ; Elliott v. Ray, ante p. 31, 
 and note (2). An action of debt was brought in New York on the judgment 
 of u justice in Vermont. The declaration averred that the judgment had 
 been rendered on, &c. at, &c. in Vermont, by J. P., one of the justices of the 
 peace within and for the county of Bennington, then and still being such 
 justice and having full power and competent jurisdiction in said cause, by 
 the confession of the defendant ; and that the justice rendered judgment in 
 favor of the plaintifl' for 171 dollars debt or damages, with costs, &c. De. 
 mnrrer to the declaration and judgment for the defendant. The Court said, 
 that the declaration was defective in not setting out facts sufficient to give 
 jurisdiction to the justice ; that the statute giving jurisdiction to the justice 
 ought to have been pleaded ; and that the general averment of jurisdiction 
 was not enough. Sheldon v. Hopkins, 7 Wend. 435. Vide also Thomas v. 
 Bobinson, 3 Id. 267 ; Cleveland v. Rogers, 6 Id. 438. 
 
 Sackett z;. Wilson, Executrix. 
 
 Decedent's Estate— Claims— Pleading.— An account, commencing "A. 
 B. debtor to C. D.," and then setting out the items, dates, sums, &c.— was 
 filed in the Circuit Court upon the application of an executor, under the 
 statute of 1824 : Held, that the account was sufficiently particular. 
 
 Abatement — Marriage of Defendant. — If a feme sole marry, pending 
 a suit against her, the suit does not abate ; but the plaintiff may proceed 
 against her alone, without noticing the marriage. 
 
 ERROR to the Marion Circuit Court. 
 Blackford, J.— The plaintiff had an account against 
 the estate of Wilson, of which estate the defendant was 
 
 (99)
 
 85-86 SUPREME COURT OF IXDIAXA. 
 
 Sackett v. Wilson, Executrix. 
 
 executrix. In conformity to the statute, the executrix 
 in January, 1825, required the plaintiff to tile his account 
 in the Circuit Court for examination. The plaintiff, ac- 
 cordingly, in February following, tiled a copy of his 
 account in the clerk's office. At the following term in 
 April, and at the subsequent terms until the reduction of 
 the judgment in October, 182(3, the parties regularly ap- 
 peared in the suit. The plaintiff, at one of those terms, 
 to-wit, that of April, 1826, suggested of record the mar- 
 riage of the defendant pending the suit, which was ad- 
 mitted ; and at the term of October, 1826, he again sug- 
 gested the marriage, and moved for au order of the 
 Court, making the husband a party to the suit. Upon 
 the motion for an order to make the husband a 
 p86] party being overruled, the plaintiti' offered *to 
 prove his account, but the Court refused to permit 
 him to do so, and dismissed the cause. 
 
 To support the judgment of the Circuit Court, the de- 
 fendant ' contends, first, that the account filed was in- 
 sufficient to enable him to plead ; secondly, that the 
 })laintifi' was proceeding against a feme covert, without 
 having made the husband a party. 
 
 This appears to be a plain case. As to the first point, 
 we tliink the account filed is sufficientl}' particular to 
 come within the provisions of the statute. It commences 
 as follows : Isaac Wilson debtor to Letus Sackett. It 
 sets out the items of the account particuhirly, with the 
 dates, sums, &c. The statute requires no more (1). 
 
 There is nothing in the second point. The Court cor- 
 rectly overruled the motion, to make the husband a 
 party; that could only be done by scire facias. But the 
 plaintift"was not obliged to proceed against the husband. 
 Upon the failure of his motion to make the husband a 
 part}', he offered to proceed in the cause against the de- 
 fendant alone. This we conceive he had a right to do. 
 The marriage of the defendant did not in any respect 
 affect her liability. At the commencement of the action, 
 
 (100)
 
 NOVEMBER TERM, 1827. 86-87 
 
 Mitchell and Others v. Merrill. 
 
 she was a feme sole; and she could not, by taking a hus- 
 band, abate the suit, or prevent its progressing against 
 her alone. 1 Chitt. PI. 45; Hamm. on Part. 227 (2). 
 
 The Circuit Court, therefore, committed an error in 
 dismissing the suit. 
 
 Per Curiam. — The judgment is reversed. Cause re- 
 manded, &c. 
 
 Wick, for the plaintiff'. 
 
 Fletcher and Brown, for the defendanto 
 
 (1) R. C. 1824, pp. 318, 319. Stat. 1833, pp. 113, 114. 
 
 (2) If a feme sole, during the pendency of a suit instituted by or against 
 her, marry, the action does not for that cause abate, but, upon the sugges- 
 tion on record of the marriage with the name of the husband, the suit pro- 
 ceeds against or in favor of the husband and wife, and is determined in the 
 same manner as if the marriage had taken place before the commencement 
 of the suit. Stat. 1826, p. 53. Ace. R. C. 1831, p. 410. 
 
 [*87] *MiTCHELL and Others v. Merrill. 
 
 Bond — Condition — Demand. — In an action on a penal bond, conditioned 
 for the delivery of property at a certain time and place, the declaration 
 need not aver a demand of the property at the place. Aliter, if the con- 
 dition be for the payment of money. 
 
 Same — Tender of Performance. — A tender and refusal of the property 
 (or that which is equivalent) at the time and place fixed by the contract 
 for its delivery, vests the property in the creditor; and puts an end to 
 his right to sue upon the contract (a). 
 
 Tender— Time — How. — The plea of tender in such n c»<o. need not state 
 that the defendant was afterwards ready, or that he 1 rings the property 
 into Court. 
 
 ERROR >to the Harrison Circuit Court. — In this action 
 Merrill was the plaintiff" below, and Mitchell, Holcroft, 
 and Ileth, were the defendants. 
 
 Blackford, J. — This was an action of covenant, founded 
 on a writing obligatory to the following effect: The ob- 
 ligors bound themselves to the plaintiff in the penal sura 
 
 (a) 18 Ind. 365. 
 
 (101)
 
 87-88 SUPREME COURT OF IXDIAXA. 
 
 Mitchell and Others c. Merrill. 
 
 of 197 dollars, conditioned for the delivery of certain 
 horses, to the sheriff of Harrison county, on a certain 
 day, at the house of Jordan Vigus, in Corydon. The 
 plaintiff avers in his declaration that the defendants have 
 not performed their covenant nor has either of them; 
 that the horses became due at the time specified in the 
 obligation, are still due, and not dehvered to the plaintiff, 
 nor to the sheriff, as aforesaid, eontrarj' to the covenant; 
 that the defendants, though often requested, have not, 
 nor has either of them, before, at the time, or since, the 
 horses became deliverable, delivered the same or any of 
 them to the plaintiff, nor to the sheriff, nor to any person 
 for them or for either of them; but that they have hith- 
 erto wholly neglected and refused, and still do neglect 
 and refuse so to do. To the damage of the plaintiff 300 
 dollars. The defendants craved oyer of the writing ob- 
 ligatory, and demurred generally to the declaration. 
 The Circuit Court decided in favor of the plaintiff. 
 
 The objection made to the declaration, is, that it con- 
 tains no averment of a demand of the horses, at the 
 place specified for their deliver}' by the condition of the 
 bond. To show the deficiency of the declaration in this 
 respect, the plaintiffs in error have referred us to San- 
 derson V. Bowes, 14 East, 500 ; Roioe v. Young, 2 Brod. 
 and Bingh, 165 ; and to the cases of Gilhj v. Springer, 
 
 and Palmer v. Hughes, in this Court. The first 
 [*88] *and two last cases mentioned, were actions on 
 
 promissor}?^ notes for the payment of monej'; the 
 other was on an acceptance of a bill of exchange : all 
 payable at a particular place. They are not, as we con- 
 ceive, applicable to the cause we are considering. This 
 action is founded on a bond with a penalty, conditioned 
 for the delivery of property at a certain time and place. 
 In Sanderson v. Bowes, and Rowe v. Young, the Courts 
 take particular care, to distinguish the cases of debt upon 
 penal bonds, from those they were examining; and ex- 
 pressly admit that, in the former, no special demand was 
 
 (102)
 
 NOVEMBER TERM, 1827. 88-89 
 
 Mitchell and Others v. Merrill. 
 
 necessary to be averred. They say, that a compliance 
 with the condition of the bond, to avoid the penalty, or 
 whatever is equivalent to a compliance, is matter of de- 
 fence, and must be pleaded. It is true, that the case 
 before us is not an action of debt, but of covenant, and it 
 may be thought that that makes a difference. Whether 
 it does or not, would be a proper subject of inquiry, if 
 this were a bond conditioned for the payment of money, 
 but as it is not, that point needs not to be considered. 
 There is another ground, independently of this being a 
 bond with a condition, upon which this case is distin- 
 guishable from those referred to. It is this : Here the 
 obligation is for the delivery of property, there the con- 
 tracts were for the payment of money. This, we are of 
 opinion, creates a wide difference between the cases. No 
 cause ever underwent a more careful examination than 
 that of Rowe v. Young. The twelve judges of England 
 all delivered their opinions, the most of them at great 
 length; so did Lords Eldon and Redesdale. The great 
 question in the House of Lords was, whether the plaintiff 
 should, in his declaration, aver a demand at the place; 
 or whether it should be left to the defendant, to plead a 
 tender at the place, or something equivalent, and bring 
 the money into Court. That the defendant should not 
 be driven to plead, was the final decision of the Court, 
 upon this strong ground, that the plea of tender requires 
 the bringing of the money into Court; and, therefore, if the 
 defendant be compelled to plead, he must transport his 
 money to the Court, however distant, though he may 
 have always had it ready at the place where, and where 
 only, he had promised to pay it. That was the consid- 
 eration which settled the case of Rowe v. Young, making 
 the averment of a demand at the place necessary, 
 [*89] in actions on notes and acceptances for *the pay- 
 ment of money, and that was the consideration 
 which produced the decisions of this Court, in Gilly v. 
 Springer, and Palmer v. Hughes, (1). 
 
 (103)
 
 89 SUPREME COURT OF INDIANA. 
 
 Mitchell and Others v. Merrill. 
 
 The case we are now considering, is, as has been already 
 observed, of a character altogether different from those 
 which have been mentioned. It is founded on a contract 
 for the delivery of property, not for the payment of money. 
 In this case, a tender and refusal of the property at the 
 time and place fixed upon for the delivery, or the defend- 
 ant's being at the time and place with the property ready 
 to deliver it, and the plaintifi''s not attending, nor any 
 person for him, to receive it — constitute a complete plea 
 in bar of the action, without the averment of a readiness 
 at any time afterwards to deliver it, or of a bringing of 
 it into Court. By the tender and refusal, or that which 
 is equivalent, the property becomes vested in the creditor, 
 and his right to sue upon the contract is at an end. 
 Slingerland v. Morse, 8 Johns. R. 474. The consequence 
 of this doctrine is clear : — The being afterwards ready, or 
 the bringing of the property into Court, not being essen- 
 tial to the plea of tender, in a case of this kind, the foun- 
 dation of the decisions referred to, requiring the aver- 
 ment of a demand in the declaration, instead of leaving 
 the defendarit to his plea, fails entirely in the ]iresent case. 
 Here, the obligors bound themselves for the delivery of 
 ■the horses, at the house of Jordan Vigus, in Cory don, on 
 a certain day. It was not material to them, whether the 
 obligee attended or not: their duty was to be at the place, 
 on the day, ready to deliver the property. If they ne- 
 glected thus to attend, and did not compl}' with their ob- 
 ligation, they failed in their contract, and are liable to an 
 action. A demand by the obligee was not a precedent 
 condition. It formed no part of the consideration of the- 
 bond. The obligors could have complied with their con- 
 tract, and they were bound to do so, whetlier the obligee, 
 or any person for him, attended or not. Had the defend- 
 ants been ready, at the time and place, to deliver, and 
 found no person there to receive — the}^ could, in this ac- 
 tion against them, have pleaded that fact in bar, with as 
 
 (104)
 
 NOVEMBER TERM, 1827. 89-90 
 
 Booker v. Bowles. 
 
 much effect, and with as little inconvenience, as they 
 could an actual delivery, if there had been one. 
 
 From these considerations, we are of opinion that the 
 declaration in this case is sufficient, without the 
 [*90] averment of a *demand at the particular place; 
 and that the judgment of the Circuit Court, there- 
 fore, overruling the demurrer was correct. 
 
 Per Curiam. — The judgment is affirmed, with 1 percent. 
 damages and costs. 
 
 Nelson, for the plaintiffs. 
 Payne, for the defendant. 
 
 (1) " If a note be made payable at a banker's, or other place, in the body 
 of it, a presentment at that place must be averred and proved. Sanderson 
 V. Bmves and others, 14 East, 500 ; Roche v. Campbell, 3 Campb. 247. But if 
 the place of payment is merely subscribed at the foot of the note, it is no part 
 of it, and must not be inserted in the declaration. Exon v. Russell, 4 M. & 
 S. 505; Williams v. Warinf/, 10 B. & C. 2. But see Trecothickv. Edwin, I 
 Stark. Rep. 468 ; where the whole of the note being printed, except the 
 names, date, and sum, and a place of payment at the bottom of the note 
 being also printed, it was holden that a special presentment there was nec- 
 essary. The 1 and 2 Geo. 4, c. 78, does not extend to promissory notes." 
 Hennell on Forms, &c., 112, n (5). See Palmer et ux. v. Hughes, Vol. 1 of these 
 Eep. 228, and note (2). 
 
 Booker v. Bowles. 
 
 Evidence — Secondary — Witness to Execution of Bond. — One of two 
 subscribing witnesses to a bond, being called to prove its execution, denied 
 his signature : Held, that the other, if he could be procured, should be ex- 
 amined ; but if he could not be found, secondary evidence might be re- 
 sorted to (a). 
 
 Same.— If a subscribing witness deny his signature, the case stands in the 
 same situation as if his name were not on the instrument. 
 
 APPEAL from the Sullivan Circuit Court. Bowles 
 was the plaintiff below, and Booker the defendant. 
 
 Scott, J. — Debt on bond. Defendant produced a count- 
 er bond to which there were two subscribing witnesses, 
 one of whom denied his signature, and the other did not 
 
 (a) 3 Blkf. 450. 
 
 (105)
 
 90-91 SUPREME COURT OF INDIANA. 
 
 Booker v. Bowles. 
 
 attend. Defendant then oifered to prove the execution 
 of the bond by other evidence, which was rejected by the 
 Court. There was a verdict and judgment for the phiintiff. 
 The rejection of the evidence offered by the defendant, 
 and the refusal of the Court to grant a new trial on that 
 ground, are the only special errors assigned. This case 
 can not be distinguished in principle, from one in which 
 no subscribing witness appears. When the witness who 
 was called denied his signature, the case stood in the same 
 situation as if his name was not on the bond (1) ; 
 [*91] and before the defendant could introduce *testi- 
 mony of an inferior grade, it was his duty to use 
 the same diligence to procure the attendance of the other 
 subscribing witness, as if there had been, originally, but 
 one witness to the bond ; and the witness failing to attend, 
 after such diligence used, he might have proved the exe- 
 cution of the bond by secondary evidence (2). This posi- 
 tion is in conformity with the general rule, that the best 
 evidence of which the nature of the case will admit must 
 be produced. The cases of Cunliffe v. Sefton, 2 East. 183, 
 and Barnes v. Trompowsky, 7 T. R. 261, are directly in 
 point. We think, therefore, the evidence was correctly 
 
 rejected, and that the refusal to grant a new trial was no 
 error. 
 
 Per Curiam. — The judgment is affirmed with b per cent. 
 
 damages and costs. 
 
 Tahbs, for the appellant. 
 
 Judah, for the appellee. 
 
 (1) As to where the writing is considered to stand as if the subscribing 
 witness's name were not on it, vide note to Jones v. Cooprider, Vol. 1, of 
 these Eep. 47. In the case of Swire v. Bell, there cited, it is decided that 
 if a witness be interested, at the time of attestation, the instrument stands 
 as if it had never been attested. Tliere is a case, however, in whicii it is 
 held that if the party knowing the witness to be interested, recjuest him to 
 attest the instrument, lie cannot afterwards object to him as incompetent. 
 Honeywood v. Peacock, 3 Cam{)b. 196. In a late case relative to the question 
 of a witness's incompetency, who had become interested after the attesta- 
 tion. Best, C. J., observes- This is an action upon a charty-party. After 
 the execution of the instrument, tlie attesting witness was. In- agreement 
 with tlie i)laintift', admitted to a share of the profits whicli the plaintiff ex- 
 pected to derive from his bargain. An objection was taken to the compe- 
 
 (106)
 
 NOVEMBER TERM, 1827. 91-92 
 
 Booker v. Bowles. 
 
 tency of the witness, and his evidence was rejected. It was then proposed 
 to prove his hand-writing : this proof was objected to and the objection 
 allowed. The Court are of opinion that this evidence was properly reject- 
 ed. There are many cases where a subscribing witness has acquired an 
 interest after the execution of the instrument attested by him in which it 
 has been decided that the })roof of his hand-writing may be received to 
 establish such instrument. 
 
 The hand-writing of a subscribing witness who has been appointed an 
 executor or administrator \_Goclfrei/ v. Norris, 1 Strange, 34 ; Cunliffe v. Sejlon, 
 2 East, 188,] or has married the person to whom the instrument was given 
 [Bucklet/ v. iSmith, 2 Esp. R. 697,] has been allowed to be proved. We do 
 not dispute the authority of any of those decisions; on the contrary, we 
 should be disposed to extend the principle established by them to the case 
 of a man entering into a partnership, and becoming interested in instruments 
 by acquiring a share in tlie credits, and taking upon himself the responsi- 
 bilities of the firm of which he becomes a member. Necessity requires 
 that, in all these cases, such evidence should be received, as otherwise 
 parties must lose the rights secured by the instruments attested, or forego 
 accepting of situations most important to their welfare. It would be a 
 
 hard thing, if the law were to say that a man should not become an 
 [*92] executor or an administrator, or accept a beneficial ■■■partnership, 
 
 without giving up debts due to the estates in which he has acquired 
 an interest. But, in the present case, the witness has only obtained an 
 interest in the contract which he was to prove, and that interest he de- 
 rived immediately from the plaintiff, who proposed to call him : the plain- 
 tiff can not complain that his witness is disqualified, when he himself has 
 been the cause of his disqualification. The case of Forrester v. Pigou, 1 M. 
 & S. 9, is stronger than the present. The plaintiff in that ca.se gave the 
 witness an interest after the cause of action accrued, without the privity of 
 the defendant, and yet the Court would not allow the defendant to call 
 him. Hoviirw. Stephenson, 5 Bing. 493. 
 
 If the witness subscribe his name without the knowledge or consent of 
 the parties, the instrument must be proved as if his name were not there. 
 M'Oruw v. Gentry, 3 Campb. 232. So, if the name of a fictitious person be 
 subscribed as a witness. Fassett v. Brown, Peake, 23. 
 
 (2) When the instrument stands as if the witness's name were not on it 
 it may be proved by some person who knows the party's hand-writing, or 
 who was present at the time of execution. 
 
 The circumstance of the witness being dead, absent from the country, 
 having become blind, &c., does not place the instrument on the same footing 
 with one having no subscribing witness. In such ca.ses resort is not had to 
 a person acquainted with the party's hand-writing, or who saw him exe- 
 cute the instrument ; but it is the hand-writing of the witness that is then 
 to be proved. 
 
 In the note to Jones v. Gooprider, referred to in the above note, a question 
 suggested, whether proof of the signature of the subscribing witness, when 
 sdmissible, is prima facie sufficient, without proof of t.he signature of the 
 parly, or other evidence of his identity. The doubt was raised, in conse- 
 quence of the following remarks of Bayi.ey, J : "It is laid down in Mr. 
 Phillips' Treatise on the Law of Evidence, that proof of the hand-writing 
 of the attesting witness is in all cases sufficient. I always felt this diffi- 
 culty, that that proof alone does not connect the defendant with the note. 
 If the attesting witness himself gave evidence, he would prove, not merely 
 that the instrument was executed, but the identity of the person so execu- 
 ting it; but the proof of the hand-writing of the attesting witness estab- 
 lishes merely, that .some person assuming the name which the instrument 
 purports to bear, executed it ; and it does not go to establish the identity of 
 
 (107:
 
 92-93 SUPREME COURT OF INDIANA. 
 
 . Booker r. Bowles. 
 
 that person, and in that respect the proof seems t» me defective." Nelson 
 V. Whitlall, 1 B. & A. 21. 
 
 Since that opinion, expressed by Bayley, J., in 1817, the subject has 
 been mentioned in the English Courts. In a case, in 1827, an agreement 
 was offered in evidence on proof of the hand-M'riting of the subscribing 
 witness who was dead. It was objected that this was insufficient, without 
 proof of the defendant's hand-writing, or some proof that he was the party 
 whose signature the witness had attested ; and for this was cited the above- 
 mentioned opinion of Bayley, J. But Tenderden, C. J., said, that the 
 practice had been otherwise ; that he had frequently admitted such evi- 
 dence; and tliat he should continue to do so until his opinion was correct- 
 ed. Page V. Mumi, 1 Moody & Malkin, 79. 
 
 In a case, in 1828, a power of attorney was offered in evidence on proof 
 of the hand-writing of the subscribing witness who was dead. This was 
 objected to, and the above-named opinion of Bayley, J., was cited. Best, 
 C. J. — "I have a great respect for the opinion of my brother Bayley, but 
 I think I am bound in such a case to act as my predecessors have done. It 
 has been the uniform practice only to prove the hand-writing of the attest- 
 attesting witness, and I am of opinion that it is the most convenient 
 [•■■'93] *course. I consider that mode as most desirable which tends to dimin- 
 ish the number of witnesses." Kay v. Brookman, 3 Carr & Payne, 555. 
 
 There is another case, in 1828, in which a bond signed' only by the de- 
 fendant's mark, was offered in evidence. The subscribing witness had been 
 subsequently appointed an executor of the obligee, and was now the plain- 
 tiff in the suit. The witness's hand-writing was proved, and some slight 
 evidence given of the part3''s identity. The defendant objected to the ad- 
 mission of the bond in evidence. Tenterden, C. J. — There is some evi- 
 dence here beyond the mere proof of the attesting witness's signature. But 
 if there were no other, I should have no doubt of its sufficiency. If the ob- 
 jection were to prevail, it would often be impossible for the obligee of a 
 bond to recover, when the subscribing witness was dead, and the obligor a 
 marksman. Mitchall, Ex'or, v. Johnson, 1 Moody & ^lalk. 176. 
 
 In ejectment, in 1829, a lease purporting to have been signed by the 
 mark of the party was offered in evidence. The jiroof was, the hand- 
 writing of the subscribing witness and that he had gone abroad ; and that 
 the defendant had spoken of the term which he had under the lease. On 
 this proof Tenterdfn, C. J., permitted the lease to be read. Doe v. Paul, 
 3Carr& Payne, 613. 
 
 In the note of Jones v. Cooprider, some of the cases are cited in which 
 proof of the witness's hand-writing had been admitted on account of Ills 
 absence. In one of these cases, C'rosdy v. Percy, the proof was admitted 
 when diligent inquiry for the witness had been made at his usual place of 
 abode, and information received that he had absconded to avoid his credi- 
 tors. But a different doctrine has been since held. Affidavits were intro- 
 duced to show tliat the witness could not be found at his office wliere in- 
 quiries had been made for him; and that the report was, that he was keep- 
 ing out of the way to avoid his creditors. Park, J. — The general rule 
 applicable to ca.ses of this description must be strictly followed, viz : that 
 an attesting witness must be called to prove the execution of a deed, or his 
 absence must lie well accounted for. Formerly proof of the hand-wriliug 
 of an attesting witness was only admissilile where such witness \\';\a <lead ; 
 and I can remember the first deviation from that rule, where it was extend- 
 ed to cases where the party was abroad, or out of the jurisdiction of the 
 Courts of this country; but I have never known an instance where his tes- 
 timony has been dispensed with, to prove the execution of a deed, on an 
 affidavit which merely stated, that it was believed he kept* out of the way 
 in order to avoid an arrest. But it has been contended, that proof of liis 
 hand-writing was admissible, if he kept out of the way at the instance of 
 
 (108)
 
 NOVEMBER TERM, 1827. 93-94 
 
 Jamison v. Heiulricks. 
 
 . , ■ .1 „;t Tt wnnni test however, on the face of the afSda- 
 the defendant in the suit It i. f/' '^^''' "";^^^.o;j,^t of his own peouniary 
 vits, that if he kept out ot the way it ^^^^.^^^j^'f^l^^^r that an attesting 
 distress and ditticulties. BuRROUGH, J--1 ^^^'^^ ^^^^\{ \^,^,,, he be out 
 .vitness must be ^^ll^^^o prove the execu on o a ^ml u .^^^^^^^^^ ^^ 
 
 ^^jS2;£:!;:or p^t;is:s ?:. &j^' %^ o,h^, e j. b. Moor. 
 
 ^^Ividenee was oftered of the -'^f i^^.^'-^i^i-lriS^S 
 
 vet gone so far, and I am atra.d to e tab ish a P «^e^'<j'.^ j ^^ relaxation 
 determine when a patient is past .=i ^^ope o c re n ^ c .^^^^.^_ 
 
 of the rules of evidence were permitted, ^l^^;'- ;^» 'f,/'^!;; ^^^r ho would 
 positions and recoveries.^ When a ^itnessMS taken m, he^ a ty 
 
 iiipiiliiSilii 
 
 ■ whom he had assigned it_: Held, ^^at it was not ng,essary lo P 
 
 to call the subscribing outness to P-ve the exea tion of ^U.e^le^^^^ ^^^^^^_ ^^ 
 
 Cress. 28. 
 
 Jamison v. Hendricks. 
 
 Trover-Demand.-A liorse which was the property of A was purchased 
 by B. at a sherifT's sale on an executicm against C. After B. had sufficien 
 reason for believing the horse to be A's property, he exercised ac s of 
 ownership over him, and made use of evasive measures to prevent A. from 
 obtaining him. Held, that A. might recover in trover tor the horse 
 a<-ainst B., without proving a demand and refusal. 
 
 S,MF-SHERIFF-If the sheriff take and sell the property of A. on an 
 ■ execution against B. he is liable to the owner, in trespass or trover, without 
 
 demand. . j. n „ ;„i,i..ff 
 
 SAME-DAMAGES.-The plaintifif may recover, in trover, for the injury 
 
 done to his goods, as well as for their value. 
 
 (109)
 
 94-95 SUPKEME COUliT OF INDIANA. 
 
 Jamison v. Hendricks. 
 
 APPEAL from the Marion Circuit Court. — Hendricks 
 brouglit an action of trover against Jamison for a liorse. 
 Plea, not guilty. Verdict and judgment for the phiiutitf 
 Lelow. 
 
 HoLMAN, J. — Trover for a horse. The substance of the 
 evidence, as set forth in a bill of exceptions, was that 
 Hendricks lent the horse to Davis, in Marion county, to 
 ride to Corydon. The horse was taken, in execution, at 
 Corydon, as the property of Davis, and sold, and Jamison 
 became the purcliaser. At the time of the levy, Davis 
 proclaimed that the horse was not his, but belonged to 
 Hendricks. Before the commencement of this suit, Jam- 
 ison told one of the witnesses, that, when Hendricks canie 
 in search of his horse, he was out at grass. After the 
 commencement of the suit, Davis observed to Jamison, 
 that he did not pity him, for he told him before, that the 
 horse was the property of Hendricks. One of the wit- 
 nesses stated that the horse was worth 30 dollars. 
 [*95] The horse was purchased by ^Jamison in 1822 ; 
 this action was commenced in 1825 ; and the trial 
 was had in October, 1826. 
 
 The defendant moved the Court to instruct the jury, 
 that it was necessary for the plaintiiF to prove a tortious 
 conversion, or a demand and refusal of the horse. The 
 Court gave that instruction. The defendant further re- 
 quested the Court to instruct the jury, that to prove a 
 conversion in this case, it was necessary to prove a de- 
 mand of the horse and a refusal to deliver him up; but 
 the Court instructed the jury that the using the horse as 
 his own by the defendant, or exercising acts of owner- 
 ship over him, was a conversion of the property. The 
 jury found a verdict for the plaintiff for 61 dollars. The 
 defendant moved for a new trial,, which was refused by 
 the Court. 
 
 The point most relied on in this case, arises out of the 
 instruction of the Court, that proof of a demand and re- 
 fusal was unnecessary. This instruction of the Court m 
 
 (110)
 
 NOVEiMJiEK TERM, 1827. 95-96 
 
 Jamison v. Hendricks. 
 
 to be taken in connection with the whole case, as it stood 
 before the jury. The officer, on an execution against 
 Davis, had taken the property of Hendricks, notwith- 
 standing the proclamation of Davis that the property was 
 not his, and was liable to the action of Hendricks, either 
 of trespass or trover, without a demand. Jamison before 
 he purchased the horse was notified by Davis that the 
 horse belonged to Hendricks. This notice, it is true, did 
 not come from a source in whicli Jamison was bound to 
 place full confidence; yet it was sufficient to put him 
 upon his guard; and to induce him to take care what he 
 was purchasing. This, taken in connection with tlie 
 statement of Jamison, when Hendricks came for his 
 horse, and was prevented, by some evasion, from seeing 
 or getting possession of him, he being kept out of the 
 way, that the horse was " out at grass,"' presents a chain 
 of circumstances, sufficient to warrant this action without 
 a regular demand and refusal; inasmuch as they show 
 that Jamison must have been exercising acts of owner- 
 ship over the horse, after he had sufficient reason to be- 
 lieve that he was the property of Hendricks; and made 
 use of evasive measures to prevent Hendricks from ob- 
 taining him. In the case of Baldwin v. Cole, 6 Mod. 212, 
 it is said that the denial of goods to him who has a right 
 to demand them is an actual conversion. And in the 
 case of La Place v. Aiqyoix, 1 Johns. Cas. -106, the defend- 
 ant's admission, that he had the plaintiff's goods, 
 [*96] and that they were *lost, was held to be evidence 
 of a conversion without proof of a demand and 
 refusal. See also 3 Stark. Ev. 1496, and various other 
 authorities there cited ; which lead to the conclusion that 
 the jury in this case, were authorized to find that the 
 defendant had converted the horse to his own use. 
 
 The damages given by the jury are perhaps more than 
 in strict justice ought to have been given; but as the 
 defendant had been about four years in possession ui' tlie 
 horse, and as the plaintiff is entitled to recover for the 
 
 (111)
 
 96-97 SUPREME COURT OF INDIANA. 
 
 Durham v. Musselman. 
 
 injury done to his goods, as well as for their value, (1 
 Stark. Ev. 199, in note, and the case there cited,) — we are 
 not prepared to say, that the damages are so conclusively 
 excessive, that the Circuit Court, in the exercise of a 
 sound legal discretion, was bound to grant a new trial on 
 that account. 
 
 Per Curiam. — The judgment is affirmed, with 1 per cent. 
 damages and costs. 
 
 Nelson, for the appellant. 
 
 Fletcher, for the appellee. 
 
 Durham v. Musselman. 
 
 Trespass — Malice — Probable Cause. — A declaration contained two 
 counts. The 1st stated that the defendant, on his unenclosed land in the 
 county, cut a tree so that it was nearly ready to fall, and set it on fire ; 
 and that the tree afterwards fell upon and killed the plaintifT's horse. 
 The 2d count stated, that the defendant, knowing the plaintiS^'s horse to 
 be running at large in the unenclosed lands of the county, and mali- 
 ciously contriving to injure the plaintiff, unlawfully and negligently cut 
 a tree in the county and set it on fire ; and that the tree afterwards, in 
 consequence of the cutting and burning, fell upon and killed the plain- 
 tiff's horse (a). 
 
 Held, that the declaration contained no cause of action. 
 
 ERROR to the Johnson Circuit Court. 
 
 HoLMAN, J. — Durham, in his declaration against Mus- 
 selman, charges in the first count that Musselman, on his 
 unenclosed land in Johnson county, cut a large tree so 
 that it was nearly ready, and always liable to fall, and 
 then built a fire around it, and negligently and unlawfully 
 left it burning, and always liable to fall ; which tree after- 
 wards, on the same day, fell upon and killed the mare and 
 colt of the plaintifi:'. In the second count, he states 
 [*97] that his mare and colt were running at large *in 
 the unenclosed lands in Johnson county, and that 
 
 (a) 53 Ind. 527 ; 16 Id. 312-314; 23 Id. 69; 27 Id. 96. 
 
 (112)
 
 NOVEMBER TERM, 1827. 97 
 
 Durham v. Musselman. 
 
 the defendant knowing the same, but contriving mali- 
 cionslj to injure the plaintifl', unlawfully, carelessly, and 
 negligently, cut a large tree in Johnson county, and then 
 built a fire around said tree, and left the same always 
 liable to fall ; which tree, by the said cutting and burn- 
 ing, afterwards, on the same day, fell upon and killed the 
 said mare and colt. To this declaration the defendant 
 demurred and had judgment. 
 
 This case seems to rest in some measure upon the pecu- 
 liar customs of this country. It is well known, that 
 horses and cattle are permitted to run at large through 
 the country, and particularly in the new settlements, in 
 one of which this transaction took place ; and are not 
 considered as tresspassing by entering the unenclosed 
 lands of any person. So that the defendant can not re- 
 sist this action, on the ground that the mare and colt of 
 the plaintiff" were trespassing on his lands when they 
 were killed. Nor can the defendant sustain his defence, 
 even on the first count in the declaration, on his supposed 
 natural right of doing what he pleases on his own laud ; 
 for a man should so use his own property as not to injure 
 the property of another. But this principle of common 
 justice does not render a man liable, as a matter of course, 
 for every injury another may sustain from his use of his 
 own property. It is only when he deviates, either by in- 
 tention or neglect, from the ordinary use of his property, 
 that he can be considered liable for an injury thereby 
 done to another. Even then, his liability depends on the 
 nature of his act, and the probability that such an act 
 would occasion an injury to another. If the act was un- 
 lawful, as laying a log in the highway, he would be liable 
 for an injury done thereby, without any reference to the 
 probability that it would occasion that particular injury. 
 But when the act is lawful, the liability of the actor, for 
 an injury occasioned by it, depends, in the first place, on 
 the question, whether the injury is the natural or proba- 
 ble consequence of the act, or is merely accidental. If 
 Vol. II.— 8 (113)
 
 97-98 SUPREME COURT OF IXDIAXA. 
 
 Durham v. Musselman. 
 
 the injury is the natural or probable consequence of the 
 act, and such as any prudent man must have foreseen, it 
 is but reasonable that the perpetrator of the act, should 
 be held accountable for the injurious consequences. As, 
 in the case of the man baiting his traps witii flesh so near 
 
 the highway, or the grounds of another, that dogs 
 [*98] passing the '^highway, or kept in another's grounds, 
 
 are attracted into his traps, and thereby injured; 
 he is liable for the injury. Townsend v.Wathen, 9 East, 
 277. In the second place, when the injury is accidental, 
 the liability of the actor must depend on the degree of 
 probability there was, that such an event would be pro- 
 duced by the act. 
 
 Testing this case, as it stands in the first count, by these 
 rules, it is evident that the cutting or burning down of a 
 tree, on a man's own land, whether enclosed or otherwise, 
 is not an unlawful act. The charge in the declaration 
 that it was unlawfully done, amounts to nothing, where 
 there are no circumstances to warrant such a charge. In 
 removing the heavy forests with which our lands are cov- 
 ered, we see it to be a very general practice, to girdle the 
 trees, and leave them to die and fall according to the 
 course of nature. If the trees so girdled fall upon the 
 cattle of others, running at large, the person who girdled 
 the trees is not liable for the injury. Every person suffer- 
 ing his cattle to run at large through the forest, must be 
 considered as running the risk of their being killed by 
 the trees so girdled. Another method used for the de- 
 struction of timber, is to employ fire -for the removing of 
 such trees as are susceptible of being felled by burning. 
 This practice, though not so common as the former, and 
 perhaps more dangerous, is by no means unlawful. The 
 destruction of the cattle of others, is not the natural or 
 probable consequence of such a practice. If cattle are 
 thereby destroyed, it can only be considered as accidental; 
 and the circumstances of the case would determine what 
 degree of probabilitv there was that such would be the 
 
 (114)
 
 ^^OVEMBEU TERM, 1827. 98-99 
 
 Durham i'. Musselman, 
 
 consequence. The simple act of leaving a tree ou tire, 
 which must of necessity burn down in a short time, and 
 which, in its fall killed the plaintiff's mare and colt, is 
 not such an act, under the existing state of things in this 
 country, as would render the actor liable to the injured 
 person. So that under the first count in the declaration, 
 the plaintiff can not maintain his action. 
 
 The second count presents the case a little differently. 
 It does not state that the tree was on the lands of the 
 defendant, but in Johnson county; but as it is not sug- 
 gested in the declaration, nor pretended in argument, 
 
 that the defendant had done any wrong as it re- 
 [*99] spected the tree itself, or was infringing the *right 
 
 of any person by molesting the tree, this differ- 
 ence in the two counts can make no difference in the de- 
 fendant's liability. But this count states that the defend- 
 ant, contriving maliciously to injure the plaintiff, cut the 
 tree and set it on fire; but this can not materially alter 
 the case. The averment of malice has no connection 
 with the injury of which the plaintiff complains. Had 
 the injury been the natural or probahle consequence of 
 the act, a malicious design might have been connected 
 with it. But to connect a malicious design to injure, 
 with the burning of a tree in Johnson county, because 
 the defendant knew that the plaintiff" had a mare and 
 colt running at large in Johnson county, seems to be 
 forced and unnatural. We can not have a definite idea 
 of a design to injure, unconnected with some degree of 
 probability, that the means made use of would effect the 
 design. Although the plaintift''s mare and colt were run- 
 ning at large in Johnson county, yet the probability of 
 injuring either of thcni by burning down a tree in that 
 county, is so very remote, that we can not connect it with 
 the idea of design or contrivance. Many thousands of 
 trees might have been left to burn down in that county, 
 on the same day, Avithout injuring the plaintiff's mare or 
 colt. In order to have ixlvcn materiality to the charge 
 
 (115)
 
 99-100 SUPREME COURT OF INDIAIS^A. 
 
 Gilly r. Breekenridge. 
 
 of malice, the declaration should have shown, that there 
 was some degree of probability, that the burning down 
 of the tree would have done the plaintift" an injury; as, 
 that the tree stood near, and would probably fall where 
 the defendant knew the plaintitf's mare and colt were 
 usually, or frequently feeding, passing, or standing; and 
 then the materiality of the charge of malice would de- 
 pend on the degree of probability. Without showing 
 some such probability of doing an injury, the charge of 
 malice amounts to nothing. So that the action can not 
 be supported on either count in the declaration. 
 
 Per Curiam — The judgment is affirmed with costs. 
 
 Sweetser, for the plaintiff. 
 
 Wick, for the defendant. 
 
 [*100] "^GiLLY V. Breckenridge. 
 
 Attachment — Filing Claims — Pleading. — Wlien a creditor comes in, 
 during the pendency of an attachment commenced by another, to obtain 
 a judgment under the statute, his claim must be set forth with the same 
 certainty that, in any other action, is required in a declaration. 
 
 . ERROR to the Knox Circuit Court. 
 
 Scott, J. — Arthur Patterson brought suit, by foreign 
 attachment, against John B. Gilly, and proceeded to final 
 judgment. During the progress of the suit, and at the 
 term of the Court at which final judgment was rendered, 
 James D. Breekenridge filed the following suggestion 
 and claim, to wit, "James D. Breekenridge suggests, and 
 gives the Court now here to understand and be informed, 
 that he is one of the creditors of the said John B. Gilly, 
 the defendant in attachment, to the amount and for the 
 sum of 4,214 dollars and 78 cents; and he prays a div- 
 idend in the property attached, in proportion to the 
 amount of his demand or claim, first deductinc: all Icffal 
 costs from the amount which the property attached may 
 
 (11.5)
 
 NOVEMBER TERM, 1827. 100-101 
 
 Gilly V. Breckenridge. 
 
 bring, according to the statute of the state of Indiana, in 
 such case made and provided. June 23rd, 1826. — James 
 D. Breckenridge. '^ The plaintiff by his counsel objected 
 to this claim, but the Court overruled the objection. A 
 jury was impaneled, and there was a verdict for the 
 whole amount of the claim, and judgment accordingly. 
 To reverse that judgment is the object of the present writ 
 of error. 
 
 It is essential to a good declaration, in all the forms of 
 action known to the common law, that it contain a good 
 cause of action, set forth with such certainty of persons, 
 time, place, and matter, as to be distinguishable from any 
 other demand of the same nature. The cause of action 
 must be so specially described, that one recovery will bar 
 any future attempt to enforce the same demand. It was 
 decided by this Court, in the case of Bond v. Patterson, 1 
 Blackf. 34, that this certainty is as indispensable in cases 
 of attachment as in any other form of action. In that 
 case, the decision had respect particularly to the descrip- 
 tion of the demand set up by the plaintilf; but the doc- 
 trine is equally applicable to one who comes in as 
 [*101] a ^claiming creditor, after the writ has been sued 
 out by another; no reason exists,why the rules of 
 law should be, in any degree, relaxed in his favor ; or why 
 he should be excused from showing his claim with the 
 same descriptive certainty which would, in any other form 
 of action, be required in a declaration. In the case before 
 us, no contract is set out, no breach assigned, no time, 
 place, or consideration, is shown; the mere suggestion 
 that the claimant is 07ie of the creditors of Gilly, to the 
 amount of 4,21-1 dollars and 70 cents, is all the claim the 
 record shows. Some depositions, and a long account 
 purporting to be some transactions between these parties, 
 are sent up with the record; but as these documents form 
 no part of the record, we can not notice them. We r.-: 
 therefore of opinion that, for the vagueness and uncer- 
 tainty of the claim, the objection made to it in the Qiv- 
 
 ■ (117)
 
 101-102 SUPREME COURT OF INDIANA. 
 
 Aborn v. Burnett and Another. 
 
 fiuit Court ought to have been sustained, and that the 
 Court erred in overruling that objection. 
 
 Per Curiam. — The judgment is reversed with costs 
 
 Judak, for the plaintift". 
 
 Dewey, for the defendant. 
 
 Aborn v. Burnett and Another. 
 
 Vendor's Lien— Deed Intended as Mortgage — Admission. — A. filed a 
 bill in chancery against B. the heir and C. the administrator of D. — stat- 
 ing that the complainant had sold and conveyed a lot of ground to D. 
 without receiving the purchase-money, and that D. had died insolvent. 
 Prayer that the lot might be sold to pay the purchase-money. An order 
 of publication was made as to the heir, who was a non-resident. The 
 administrator filed an answer and cross-bill — stating that the conveyance, 
 though absolute on its face, was intended as a mortgage to secure the 
 payment of a debt due from A. to D., and praying a sale of the lot to pay 
 the debt. 
 
 Held, 1st, that there could be no decree for the complainant without proof 
 that the order of publication, as to the heir, had been made. 2dly, that 
 parol evidence of the complainant's admissions as to the deed's being in- 
 tended to be a mortgage, should be received with great caution; and 
 ought not, where there are circumstances raising a contrary presumption, 
 to be permitted to control the deed («). 
 
 ERROR to the Floyd Circuit Court. 
 
 Scott, J. — Abbv B. Aborn filed her bill in chancery in 
 the FIojhI Circuit Court against Moses Eastburn, heir at 
 law, and Alexander S. Burnett, administrator of 
 [*102] John Eastburn, deceased, ^stating that, in the 
 \ year 1818, she sold and conveyed to the said John 
 
 Eastburn a certain lot in the town of New Albany, for 
 the sum of 800 dollars; that, at the time of the sale and 
 conversance so made, she received no part of the purchase- 
 money for the said lot; but that, since that time, she has 
 received 311 dollars and 20 cents. She sets out the death 
 of Eastburn, alleges his estate to be insolvent, and prays 
 
 (a) 5 Blkf. 361 ; 19 Ind. 334; 22 Id. 59; 29 Id. 570. 
 
 (118)
 
 NOVEMBER TERM, 1827. 102-103 
 
 Aborn v. Burnett and Another. 
 
 a sale of the lot, to satisf}- and pay the amount of the 
 purchase-money remaining due. Burnett, the adminis- 
 trator, in his answer and cross-bill, alleges that the con- 
 veyance stated by the complainant, although appearing 
 on its face to be an absolute transfer of the property, was, 
 by the intent and agreement of the parties, to stand only 
 as a security for the payment of a certain debt, which he 
 alleges was due from the said Aborn to the said East- 
 burn ; and that, on payment of that debt, the contract 
 was to be rescinded, or the lot reconveyed to the com- 
 plainant. He admits the insolvenc}^ of Eastburn's estate, 
 but resists the complainant's claim to a lien on the prop- 
 erty. He charges the complainant with the amount re- 
 ceived by her, and claims a foreclosure and sale of the 
 mortgaged premises, for the payment of that debt. There 
 was an order of publication with respect to the heir at 
 law, who, it appears, is a non-resident. After several con- 
 tinuances, the Court, without any further notice being 
 taken of the heir at law, rendered a decree in favor of 
 Burnett, the administrator, and ordered a sale of the lot 
 in conformity to the prayer of his cross-bill. i 
 
 This was wrong. The Court ought to have been satis- 
 fied that the publication had been made, agreeably to 
 their order, prior to the rendition of a decree which would 
 affect the interest of the heir at law. This circumstance 
 might be less important, if the decree were othenvi;je 
 clear of objection. The decree is founded on parol evi- 
 dence of the declarations of the complainant, in cen'ain 
 conversations with the witnesses, or in their hearing, un- 
 aided by any circumstance of fraud, mistake, or accident ; 
 a species of evidence extremely liable to be misunderstood 
 or perverted, very difficult to be assailed, and at the same 
 time so evanescent, that great caution ought to be used 
 in admitting it to control an absolute deed. The cases 
 where Courts have admitted parol evidence to interfere 
 with written contracts, have generally -been where 
 [*103] there existed some equity ^dehors the deed. There 
 
 (119)
 
 103 SUPREME COURT OF IN^DIANA. 
 
 Holford V. The State. 
 
 is nothing in this record which goes to show any equita- 
 ble circumstances dehors the deed, which would open 
 the door to the admission of parol evidence. On the 
 contrary, the case, as exhibited in the record, affords 
 strong presumption against such evidence. We have not 
 the deed before us, but it is stated to have been made in 
 the year 1818; and the defendant alleges, that it was 
 made to secure the payment of a debt then existing. 
 When we examine the demand set up by the administra- 
 tors, we lind the -first item of the account dated on the 
 3d of December of that year, and the account, at the 
 close of the year, so small as to render it extremely im- 
 probable that either party would have thought of a mort- 
 gage to secure its discharge. 
 
 Per Curiam. — The decree is reversed with costs. Cause 
 remanded, &c. 
 
 Nelson, for the plaintiff. 
 
 Payne, for the defendant. j 
 
 Holford v. The State. 
 
 Keceiving Stolen Goods— Venue — Time. — Indictment for receiving sto- 
 len goods knowing them to be stolen. i7eW, that the time and place, 
 when and where the goods were stolen, need not be stated in the indict- 
 ment, nor proved at the trial (a). 
 
 ERROR to the Dearborn Circuit Court. 
 
 Scott, J.-r-Holford was indicted in the Dearborn Cir- 
 cuit Court for receiving stolen goods ; on which indict- 
 ment there was a verdict of conviction, and judgment. 
 Tlie errors assigned are, that the indictment does not al- 
 lege any time and place when and where the goods were 
 stolen ; and that, on the trial, there was no evidence to 
 prove that the said goods were stolen within the state of 
 Indiana, 
 
 • (a) 49 Ind. 248 : 33 Id. 439. 
 
 (120) ■
 
 NOVEMBER TERM, 1827. 103-104 
 
 Holford I'. The State. 
 
 To test the validity of the errors assigned, it is neces- 
 sary only to revert to the statute creating the offence. 
 Tlie words of the statute are as follows, to wit, " every 
 person who shall buy or receive stolen goods, knowing 
 the same to be stolen, shall upon conviction be punished," 
 &c. R. C. 1824, p. 140. In an indictment, every 
 [*104] material fact ought to be alleged with *the cer- 
 tainty of time and place ; and every fact is mate- 
 rial, which is necessary to constitute the crime charged 
 in the indictment. That the goods mentioned were sto- 
 len goods, and that the defendant received them, know- 
 ing them to be such, were material facts to be alleged and 
 proved; because they are the facts which constitute the 
 offence; but the time and place of stealing the goods need 
 not be alleged ; because the defendant is not charged with 
 the larceny. If it were necessary, by averment and proof, 
 to connect the time and place of the stealing with the 
 act of receiving, it would, for the same reason, be neces- 
 sary also to connect the same circumstances with his 
 knowledge of the fact, that the goods were stolen. If 
 such were the law, no offender could be convicted, under 
 this statute, without proof, not only of his having received 
 stolen goods, knowing them to be such, but also of his 
 knowledge of the precise time and place of the original 
 larceny. And yet it is easy to conceive a case, in which 
 a man might be guilty of the offence of knowingly re- 
 ceiving stolen goods, without either the offender, or the 
 witnesses, having any knowledge of the time and place 
 of the felonious taking. If these positions be correct, it 
 .clearly follows that any evidence which might have arisen 
 in this case, going to show the time and place of the orig- 
 inal larceny, was unnecessary to support the charge in 
 the indictment. 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Howard, for the plaintiff". 
 Wlvfcnrab^ for the state. 
 
 (121)
 
 104-105 SUPREME COURT OF IXDIAN^A. 
 
 Stegars v. The State. 
 
 Stegaks v. The State. 
 
 Becognizance — Surrender of Principal — Eelease. — The surety in a 
 recognizance before a justice of the peace, for the principal's appearance 
 at the Circuit Court to answer a criminal charge, can not discharge liim- 
 self by a surrender of his principal to the justice (a). 
 
 Same — Practice. — The surrender in such cases, accompanied by a certified 
 copy of the recognizance, may be made to the sheriff. 
 
 ERROR to the Rush Circuit Court. 
 
 HoLMAN, J. — Scire facias, on a recognizance stating 
 that John Moore and William Stegars, on the 8th 
 [*105] of February, 1827, *appeared before Daniel Lan- 
 man, a justice of the peace, and acknowledged 
 themselves to owe to the state of Indiana 200 dollars 
 each; to be levied, &c. ; conditioned that said Moore 
 should appear at the next Circuit Court and answer to a 
 charge of perjury; that Moore failed to appear, and that 
 Stegars, when required, failed to bring in his body in 
 discharge of his recognizance; that thereupon judgment 
 was entered up against Stegars, and a scire facias awarded 
 against him to show cause why the state should not have 
 execution on said judgment. The scire facias was re- 
 turned " not found." Afterwards the defendant appeared 
 by his counsel, obtained oyer of the recognizance and 
 scire facias, and pleaded three several pleas in bar. 
 These pleas are drawn out to a considerable length, but 
 are in substance as follows : 
 
 First, that said Moore being surrendered by the de- 
 fendant as his bail to a proper tribunal, and being in the 
 custody of a proper officer, to wit, a constable, by virtue 
 of said surrender, was brought before an associate judge 
 in obedience to a writ of habeas corpus, by the constable, 
 who made his return "without any papers to show why 
 he was detained in the custody of the said Lanman :" and 
 that the said judge ordered the said Moore to be dis- 
 
 ((() 52 Ind. IGS. 
 
 (122)
 
 NOVEMBER TERM, 1827. 105-lOG 
 
 Stegars v. The State. 
 
 charged, who thereupon was discharged accordingly; 
 averring that the said Moore so discharged, and the said 
 Moore named in said recognizance, were the same per- 
 son, and tliat there was no other charge against him but 
 the charge in the recognizance. Secondly, that after en- 
 tering into tlie recognizance, and before the recognizance 
 was returned into court, he retook the said Moore as his 
 bail, and afterwards, on the same day of the date of the 
 recognizance, delivered him to the said justice, and into 
 the custody of the acting constable of said justice; and 
 that said Moore was then and there received by the said 
 justice and constable in discharge of said recognizance, 
 and to answer to the state for the said offence. Thirdly, 
 that on the — day of — , 1827, he surrendered up the 
 said Moore to the said justice, at his office, who had full 
 authority to receive said Moore, and did receive him and 
 commit him to the custody of a constable; averring that 
 the surrender was made by the defendant, as the bail of 
 
 the said Moore, in discharge of his recognizance. 
 [^106] *The attorney for the state demurred to these 
 
 pleas; the demurrer was sustained by the Court, 
 and execution awarded. 
 
 The plaintiff in error contends here, that he had a right 
 to surrender his principal to the justice of the peace who 
 took the recognizance, at any time before the recogni- 
 zance was returned into Court. If he is correct in this 
 position, and his right to make the surrender does not 
 exist after the recognizance is returned into Court, his 
 first and third pleas must fail; because they do not show 
 the time when the surrender was made, nor that it was 
 made while the recognizance remained with the justice 
 of the peace ; and more especially the first, because it 
 does not state that the surrender was made to the justice 
 of the peace, but to a 2^roper tribunal. The second is 
 therefore the onl}^ plea that requires our attention. This 
 plea avers a surrender of the principal to tlie justice of 
 the peace, on the dav the recognizance was taken, and 
 
 (123) ^
 
 106-107 SUPREME COURT OF INDIANA. 
 
 Stegars v. The State. 
 
 before it was returned into Court. It becomes tlierefore 
 necessary to inquire wliether the bail had a riglit to make 
 such a surrender. That he would have this right it" we 
 were governed by the English practice, seems to be con- 
 ceded; but such a right does not seem to be consistent 
 with our system of jurisprudence, nor does it appear to 
 have been contemplated by our legislature. As a gen- 
 eral rule it would be extremely inconvenient and dan- 
 gerous. A justice of the peace in this state, is not con- 
 sidered as having a ministerial officer at all times attend- 
 ing upon him; and in the absence of his officer, he is 
 unprepared to detain a prisoner, or to conduct him to 
 prison. So that, independently of any act of the legisla- 
 ture, he would be an improper officer to receive the pris- 
 oner at an}' time the bail might think proper to surrender 
 him. But the legislature has made ample provision, in 
 all such cases, by authorizing sureties in criminal cases to 
 surrender their principals to the sherift', with a certitied 
 copy of the recognizance. R. C. 1824, p. 379 (1). This 
 seems to be the only mode contemplated by the legisla- 
 ture, and the only, mode that could be safely and conve- 
 niently pursued in this country. We therefore think 
 that the right of surrendering the principal to the justice 
 of the peace, even before the removal of the recogni- 
 zance, does not exist. 
 
 But this plea further states, that the justice of the 
 
 peace received the principal in discharge of the 
 [*107] recognizance, and *committed him to the custody 
 
 of the constable. If such a surrender was unau- 
 thorized by law, and the bail had no right to make it, 
 the act of the justice of the peace could not affect the 
 case. The act of assembly authorizing the justice of the 
 peace to take the recognizance, R. C. 1824, p. 236, requires 
 him to return the recognizance into the Circuit Court, or 
 to transmit it to the prosecuting attorney, or clerk, at as 
 early a time as is convenient before the sitting ot the 
 Court (2); and does not contemplate his doing any other 
 
 (124)
 
 NOVEMBER TERM, 1827. 107-108 
 
 Holt V. Alloway. 
 
 act, relative to the prisoner, after taking the recognizance, 
 besides making such return. There however can be no 
 doubt but that while all the parties are yet before him, 
 he might, at the request of the bail, cancel the recogniz- 
 ance, and proceed in the case as if no recognizance had 
 been taken. But after he has disposed of the case, and 
 dismissed the parties from before him, the only legal act 
 that remains for him to do in the case is, to return the 
 recognizance into Court. And the only way that the bail 
 could then exonerate himself from his responsibility would 
 be to surrender the principal to the sheriff. Had this 
 method been pursued in this case, it is not probable that 
 the prisoner would have been discharged, as is stated in 
 the first plea; the officer having him in custody would 
 have been able to show a good cause for detaining him. 
 The result of the case before the associate judge, clearly 
 shows the impolicy of pursuing any other method of sur- 
 render, than that prescribed by the act of assembly. 
 
 There are some other questions raised in this case, but 
 they are without weight. There is nothing in the objec- 
 tion, that the recognizance was not signed by the recog- 
 nizors. See 1 Chitt. C. L. 104. And the pretext for the 
 objection, that the scire facias was not executed, was at 
 an end as soon as the defendant appeared to the action. 
 
 Per Curiam. — The judgment is affirmed with costs» 
 
 Rariden and Sweetser, for the plaintiff. 
 
 Whitcomb, for the state. 
 
 (1) R C. 1831, p. 197, sec. 92, accord. 
 
 (2) R C. 1831, p. 293, accord. 
 
 [*108] Holt v. Alloway. 
 
 Foreign Judgment — Res Adjudicata. — The judgment of a Court of rec- 
 ord of competent jurisdiction in one state, fairly obtained, where the de- 
 fendant had personal notice of the suit, is conclusive between the parties 
 
 (125)
 
 108 SUPREME COURT OF IKDIAXA. 
 
 Holt V. Alloway. 
 
 in an action on it in any other state ; and the circumstance, that tlie 
 juflgmcnt is against the defendant as special bail, makes no difference. 
 
 Sajie — Defence, — To an action on the judgment of a Court in another 
 state, the defendant may plead that the judgment was obtained by fraud, 
 or that the court had no jurisdiction of the person or of the subject-mat- 
 ter. 
 
 Same — Juiijs iiction. — A judgment obtained conformably to the laws of 
 the state against a person resident therein, without personal notice of the 
 suit, is not conclusive against him in an action on it in another state; 
 nor is such judgment absolutely void as the judgment of a court having 
 no jurisdiction. The judgment in such case, stands on the same footing 
 with a foi-eign judgment ; and if it be against special bail, he may, in an 
 action on it in another state, plead that no ca. sa. had issued against his 
 principal («). 
 
 ERROR to the Bartholomew Circuit Court. 
 
 Blackford, J. — This was an action of debt, founded 
 on the judgment of a Circuit Court of the state of Xen- 
 tucky. The judgment is declared on as a matter of rec- 
 ord, with a reference by the prout patet per recordum. The 
 defendant pleaded, inter alia, that the judgment, if any, 
 had been obtained against him on a recognizance of spe- 
 cial bail for W. Alloway, without any notice having been 
 served on the defendant; and without any capias ad sat- 
 isfaciendum having been issued against the principal. 
 There was a general demurrer to the plea, and judgment 
 for the defendant. 
 
 This plea, though not technically drawn, may be con- 
 sidered as averring, in substance, that the defendant had 
 no personal notice of the original suit; and the plaintiiF 
 contends, tliat, let the law be as it may in otdinary cases, 
 as this was an action against special bail, no personal no- 
 tice was necessary. For this he cites Delano v. Jopling, 
 1 Littell, 417. The opposite doctrine, however, is laid 
 down \\\ Robinson Y, The Executors of Ward, 8 Johns. R. 
 86, relied on by the defendant. In the latter case it is 
 decided, that the circumstance of the judgment having 
 been obtained against the defendant as bail, should make 
 no difference; and our opinion is in accordance with this 
 
 (a) 38 Ind. 429 ; 9 Id. 212 ; 2 Id. 548 ; 4 Blkf. 429. 
 
 (126)
 
 KOVEMBER TERM, 1827. 108-109 
 
 Holt r. Alloway. 
 
 decision. The defence of bail may be as valid and im- 
 portant as that of a principal and Avhatever op- 
 [*109] portunity of making it may *be claimed for the 
 one, may be also for the other. There being, 
 therefore, nothing peculiar in this case to take it out of 
 the general doctrine applicable to actions on the judg- 
 ments of other states, it becomes necessary to examine 
 what that doctrine is. 
 
 By the act of congress of 1790, passed in pursuance of 
 a provision in the constitution of the United Scates, the 
 judicial proceedings of each state, shall have the same 
 faith and credit in the other states, that they have in the 
 state whence they are taken. According to this act, we 
 consider that the judgment of a Court of record of com- 
 petent jurisdiction in one state, fairly obtained, where the 
 defendant had personal notice of the action, is conclusive 
 between the parties in any other state in which an action 
 may be brought on it. In such a case, nil debet can not 
 be pleaded, because that w«uld lead to a re-examination 
 of the merits of a cause, presumed to have been already 
 fairly and fully tried; there, the record being conclusive, 
 'nul (iel record is the only general plea. 31ills v. Duryee, 7 
 Cranch. 481. But if the Court rendering the judgment, 
 have no jurisdiction of the parties, or of the subject-mat- 
 ter; or if the judgment be obtained by fraud; we are of 
 opinion that the defendant is not to be confined to the 
 single plea of nul tiel record, should an action be brought 
 against him in another state on such a judgment. In 
 these cases he must be permitted to plead the fraud, or 
 the want of jurisdiction of the person, or of the cause, in 
 bar of the suit. The common principles of justice seem 
 to demand, that such should be the construction of the 
 act of congress, and there is good authority for saying, 
 that such a construction is in accordance with the princi- 
 ples of law. Bisscll v. Briggs, 9 Mass. 462 ; Borden v. 
 Fitch, 15 Johns. R. 121 ; Andrews v. Ifontgomery, 19 Johho, 
 R. 162 (1). 
 
 (127)
 
 109-110 SUPREME COURT OF INDIANA. 
 
 Holt t'. Alloway. 
 
 The cause under consideration does not belong to either 
 of those classes of cases. On the one hand, it is a case to 
 which, for the want of personal notice, the act of congress 
 giving to the judgment of one state, when sued upon in 
 another, the same conclusive effect as it has where ren- 
 dered, does not properl}^ f^pply* That act is based upon 
 the principle, that the merits of a cause once fairly and^ 
 fully tried and determined in one state, should not be 
 
 subject to the subsequent investigations and deci- 
 [*110] sions of the Courts of other states; but a *judg- 
 
 ment rendered, like the one in question, in the 
 absence of the defendant, and without any personal no- 
 tice to him of the suit, can not be said to have been thus 
 fairly obtained, and, consequently, does not come within 
 the principle of the act of congress. On the other hand, 
 although the defendant liad no personal notice of the 
 original suit, yet, as it does not appear but that he was a 
 resident of the state of Kentucky when the action was 
 commenced, and that the judgment was recovered in con- 
 formity with the laws of that state, we would not, it is 
 conceived, be warranted in determining that the Court 
 had no jurisdiction of the defendant, and that the judg- 
 ment is a nullity. We are of opinion, therefore, that ac- 
 cording to the facts on the record, the judgment in this 
 case must be viewed, not as conclusive, for the want of 
 personal notice; not as absolutely void, since the defend- 
 ant must be presumed a resident of Kentucky when the 
 suit was commenced, and amenable to its laws; but we 
 must consider it as a foreign judgment, and j^rima facie 
 evidence of the debt. It is yer se a cause of action, and 
 may be declared on, as in the present case, without set- 
 ting forth the original demand. Its justice, however, is 
 subject to be impeached ; and it maybe shown to have 
 been unduly or irregularly obtained. 
 
 The defendant has here undertaken to impeach the 
 justice of the judgment by showing in his plea, that it 
 was rendered against him on a recognizance of special 
 
 (128)
 
 NOVEMBER TERM, 1827. .lO-lli 
 
 Holt V. AUowav. 
 
 bail; that he had no personal notice of the suit; and that 
 no capias ad satisfaciendum had ever issued ao"ainst the 
 principal If these facts be true, and the demurrer ad- 
 mits them to be so, the plaintiff had no right to recover. 
 No capias ad satisfaciendum having issued against the 
 principal, the bail coukl have pleaded that fact in bar of 
 the original action, if he had had an opportunity to do 
 so. Such a plea, it is true, would have- been too late, in 
 a suit like the present, had this been a domestic judg- 
 ment of record, or entitled, under the act of congress, to 
 the conclusive effect of such a judgment. That not be- 
 ing the case, however, as appears by the record, but the 
 judgment having the character and validity only of a 
 foreign judgment, the justice of which might be im- 
 peached, the want of a capias ad satisfaciendum showing- 
 it to be unjust and that it had been unduly obtained, was 
 
 a bar to the action. 
 [*111] *There is another point in this cause which it 
 may be proper to mention. The declaration 
 treats the judgment as conclusive under the act of con- 
 gress; and the question suggested is, whether the defend- 
 ant for that reason was bound, in pleading, to consider it 
 in any other light. If he was not, the plea of a want of 
 personal notice was of itself sufficient. This subject, 
 however, need not be examined, for, assuming that the 
 judgment, though not so described, may be considered as 
 a foreign one, the defendant has even in that case, as we 
 have already observed, made out a good defence. 
 
 Fer Curiam. — The judgment is affirmed with costs. 
 
 Wick, for the plaintiff". 
 
 Sweetser, for the defendant. 
 
 (1)^ Vide note (1) to Cok v. DriskeU, Vol. 1, of these Eep. 16. Chancel- 
 lor Kent, after referring to mo.st of the authorities on this subject, says: 
 The doctrine in Milh v. Duryee [7 Cranch, 431,] is to be taken with the 
 qualification, that in all instances the jurisdiction of the Court rendering 
 the judgment may be inquired into, and the plea of nil debet will allow the 
 defendant to show that the Court had no jurisdiction over his per.son. It is 
 only when the jurisdiction of the Court in another state is not impeached, 
 either as to tlie subject-matter or the person, that the record of the judg- 
 
 VOL. II.— 9 (129)
 
 111-112 SUPREME COURT OF mDIA^^A. 
 
 Holt I'. Allowav, 
 
 nient is entitled to full faith and credit ; and if the suit in another state was 
 commenced by the attachment of property, the defendant may plead in bar 
 tiiat no process was served on him, and that he never appeared either in 
 person or by attorney. Starbuck v. Murray, 5 Wend. 148. A special plea 
 in bar of a suit on judgment in another state to be valid, must deny, b\ 
 j)Ositive averment.s, every fact which would go to show that the Court ii> 
 another state had jurisdiction of the person, or of the subject-matter. 
 Harrod v. Barretto, 1 Hall's N. Y. Kep. 165 ; 1 Kent's Comm. 2d ed. pft 
 260, 261. 
 
 The most important cases on the subject, not cited in the note to Cole v. 
 Driskell, are T/iurber v. Blackbourne, 1 N. H. Kep. 242 ; Spencer v. Brockivay, 
 1 Ohio Rep. 259 ; Aldrich v. Kinney, 4. Conn. Rep. 380 ; Benton v. Biirgot, 
 10 Serg. &Rawle, 240; Hall v. Wi'lliamg, 6 Pick. 232; Netvell v. Neuion, 10 
 Pick. 470, 472 ; Harrod v. Borreito, 1 Hall, 155 ; Clarke's Admr. v. Day, 2 
 Leigh, 172; Starbuck v. Murray, 5 Wend. 148; Shwmvayv. StUlman, 6 Wend. 
 447'. 
 
 The case of Shumway v. Stilhnan, supra, had been previously before the 
 Court. It was instituted in New York on a judgment obtained in Massa 
 chusetts. The plea in the first instance was, that at the time when the suit 
 was commenced, and from that time till the rendition of the judgiaent, the 
 defendant resided in New York. This plea not showing but that the de- 
 fendant had been served with process or had appeared to the action, waa 
 held on demurrer to be insufficient. 4 Cowen, 292. The defendant, in the 
 second instance, pleaded, that at the time of the commencement of the suit 
 in which the judgment was obtained, and when the judgment was rendered, 
 and during the intervening time, he was residing at Schenectady, in New 
 York; that he was not an inhabitant of Massachusetts ; that during all the 
 said time he was not in Massachusetts ; was not amenable or subject 
 [■■112] to the jurisdiction of the Court in which the •■'judgment was render- 
 ed, was not arrested or personally served with process in the said suit 
 in Massachusetts and had not any legal notice of such suit. The plaintiff 
 replied, that the defendant had had notice of the suit, and had by an attor- 
 ney appeared to the same. There was a verdict for the plaintiff subject to 
 the opinion of the Court as to the law. The Court said that the plea wa.s 
 good. They said also, that the judgment of a Court of general jurisdiction 
 in any state of the Union, is equally conclusive upon the parties in all the 
 other states, as in the state which it was rendered ; but that this is subject 
 to two qualifications: 1. If it appear by the record that the defendant 
 was not served with process and did not appear in person or by attorney, 
 such judgment is void ; 2. If it appear by the record the defendant ap- 
 peared by attorney, the defendant may disprove the authority of such at- 
 torney to appear for iiim. 6 Wend. 447. 
 
 If the record state that the defendant appeared in person, it has been, 
 made a question whether he is not estopped to deny such appearance. In 
 Massachusetts the CoHrt says: If it appeared by the record tliat the defend- 
 ant had notice of the suit, or that he appeared in defence, we are inclined 
 to think that it could not be gainsaid ; for as we are bound to give a full 
 faith and credit to the "record, the fact* stated in it must be taken to be 
 true, judicially, and if they should be untrue by reason of mistake or 
 otherwise, the aggrieved party must resort to the authorities where the 
 judgment was rendered for redress, for he could not be allowed to contra- 
 dict tlip record by a plea and by an issue to the country thereon. But if 
 the record does not show any service of process, or any appearance in the 
 suit, we think he may be allowed to avoid the effect of the judgment here, 
 by showing that he was not within the jurisdiction of the Court which ren- 
 dered it, for it is manifestly against first principles, that a man should be 
 condemned, either criminally or civilly, without an opportunity to be heard 
 in his defence. Hall v. ]\'illi(iiiis, supra. 
 
 (130)
 
 NOVEMBER TERM, 1827. 112-113 
 
 Cupps t'. Irvin. 
 
 It is decided in New Yoi'k, that the defendant may deny a statement in 
 the record of his personal appearance. After citing Aldrich v. Kinney, 4 
 Conn. Eep. 380, to show that the defendant is not estopped by the record to 
 deny his appearance by attorney, tlie judge, in delivering the opinion of the 
 Court, says : If the allegation in the record of an appearance by an attor- 
 ney is examinable into, in action on the judgment, and may be disproved, I 
 can not see why the allegation of an appearance of the party in person is 
 not in like manner questionable. Starbuck v. Murray, supra. 
 
 Cupps V. Irvin. 
 
 Equitable Title — Injunction. — A., holding a land-office certificate for a 
 tract of land, executed a title-bond to B. for a conveyance at a future 
 time of part of the land, and put him in possession. A., afterwards, sold 
 and assigned the certificate to C, with notice of B.'s equity. D., the as. 
 signee of B., having reason to fear that C. would disturb his possession, 
 and sell to a purchaser without notice, filed a bill in chancery to enjoin 
 him from doing so, and obtained a decree accordingly (a) . 
 
 APPEAL from the Lawrence Circuit Court. 
 
 Blackford, J. — This is a case in chancery. The matC' 
 rial facts are as follows: — Manson had a land-office cer- 
 tificate for a quarter section of land. The dato 
 [*113] of the entry, or the amount *paid is not stated. 
 He sold 30 acres of the land to Freeman, and gav(3 
 him his bond for the making of a good title in the year 
 1829. Freeman had possession of the land so purchased, 
 with the consent of Manson, After the execution of the 
 title-bond, Manson sold and assigned the certificate to 
 Irvin, the defendant, without any reservation as to Free- 
 man's claim, informing the purchaser, that that claim 
 was conditionally assigned to him, Manson, and that he. 
 intended to discharge the land of it. Cupps, the com- 
 plainant, is the assignee of Freeman, and he has reason 
 to fear that Irvin will disturb his possession, and also sell 
 and assign the certificate without notice to the purchaser 
 of the complainant's claim. The bill prays that the de- 
 fendant be decreed to execute an acknowledgment of the 
 
 (a) 18 Ind. 114. 
 
 (131)
 
 113-114 SUPREME COURT OF INDIANA. 
 
 Cupps V. Irvin. 
 
 trust, and enjoined from disturbing tlie complainant's 
 possession, and for general relief. The Circuit Court 
 dismissed the bill with costs. 
 
 In determining this case, it is not necessar}^ to say 
 what will be the extent of the complainant's claim when 
 this title-bond shall have become due. The defendant 
 purchased with full notice of the bond, and the testimony 
 shows that the complainant has good cause to apprehend 
 that his possession will be disturbed; and, also, that the 
 defendant will sell and assign the certificate to some per- 
 son without notice of the bond. These facts, we con- 
 ceive, are sufficient to entitle the complainant to a decree, 
 restraining the defendant from assigning the certificate 
 without notice; and from interrupting the complainant's 
 possession. The decree of the Circuit Court,- dismissing 
 the complainant's bill, is accordingly reversed; and this 
 Court, proceeding to give such a decree as the Circuit 
 Court ought to have given, do strictly enjoin the said 
 Irvin from selling, leasing, mortgaging, or in any man- 
 ner or for any time disposing of, the said 30 acres of 
 land piarticularly described in the title-bond mentioned in 
 the record of this case ; and from assigning the certificate 
 therefor in the record mentioned, without giving notice 
 to the purchaser, lessee, mortgagee, assignee, or other 
 person concerned as aforesaid, of the said title-bond, 
 whilst the same shall remain unsatisfied ; and do also en- 
 join the said Irvin, and ever}' person claiming or to 
 claim, by, through, or under him, from disturbing or in 
 any way interrupting the possession of the said Cupps, his 
 
 heirs and assigns, in the said 30 acres of land. 
 [*114] *To be certified, &c. Decree for costs in this 
 Court. 
 
 Nelson, for the appellant. 
 
 Naylor, for the appellee. 
 
 (132)
 
 NOVEMBER TERM, 1827. 114 
 
 Barlow v. The State. 
 
 Barlow v. The State. 
 
 Jury — Objections to When Made. — If one of the petit jurors, summoned 
 to try an indictment, was on the grand jui-y that found the bill, the de- 
 fendant may challenge him. But he can not, on that ground, move for 
 a new trial after a verdict of guilty, if he knew of the objection, and 
 omitted to make it, when the jury was impaneled («). 
 
 Verdicts — Affidavits of Jurymen. — The affidavits of jurors may be re- 
 ceived in support of their verdict, but not to impeach it (b). 
 
 Jury — Misconduct — Harmless Error. — If a juror, during the trial of a 
 cause, converse with a bystander, or leave the Court room without con- 
 sent of the Court, it is a misdemeanor for which he may be punished. 
 But if the investigation of the cause was not interrupted, if nothing took 
 place which could influence the juror, and if no attempt was made to 
 tamper with him, the misconduct will not entitle the defendant to a new 
 trial, after a verdict against him, even in a case of manslaughter (c). 
 
 ERROR to the Hendricks Circuit Court. — Petition for 
 a rehearing. 
 
 Blackford, J. — This was an indictment for man- 
 slaughter. Plea not guilty. The jury found the defend- 
 ant guilty, and fixed the period of his imprisonment at 
 one year. The defendant mov^ed for a new trial, the 
 motion was overruled, and judgment rendered on the ver- 
 dict. The cause has been brought before this Court 
 during the present term, and the judgment afiirmedo 
 
 There are two grounds taken by the counsel for the 
 plaintift* in error in their petition for a rehearing, viz. 
 1st, that two of the petit jurors were members of the 
 grand jury that found the indictment; 2dly, that there 
 was a misbehavior of two of the petit jurors during the 
 progress of the trial. 
 
 With respect to the first ground, the fact as above 
 stated is admitted in the record, but the afiidavits of the 
 two jurors show, that the defendant below had previously 
 known of their being on the grand jury. The defendant 
 does not deny the previous knowledge, but states in his 
 
 (a) 32 Ind. 384 ; 16 Id. 298 ; 5 Id. 122 ; 7 Id. 63 • 13 Id. 90 ; 46 Id. 132 ; 
 58 Id. 182. (6) 54 Ind. 339. (c) 58 Ind. 293. 
 
 (133)
 
 114-115 SUPREME COURT OF INDIANA. 
 
 Barlow r. The State. 
 
 affidavit that he did not recollect the circumstance when 
 the petit jury was impaneled, nor did it occur to him 
 until after the verdict had been returned. The counsel 
 of the defendant knew nothing of the fact, until after 
 the verdict had been given. The admissibilit}' of 
 [*115] the ^affidavits of the jurors was objected to, but 
 the Circuit Court admitted them, and we think 
 correctly. The rule is, that the affidavits of jurors may 
 be received in support of their verdict, though not to im- 
 peach it. Dana v. Tucker, 4 Johns. R. 487. Here, the 
 defendant had once known, that these men were on the 
 grand jury. The statement of his not recollecting it is 
 insufficient. An affidavit to that effect could never be 
 disproved. This part of the case, then, presents the 
 question, whether the objection, known to the defendant 
 at the time of impaneling the jury, but not made until 
 after the verdict, was good on a motion for a new trial. 
 We think it was not. It was a good cause of challenge, 
 but being known to the party, and not mentiond at the 
 proper time, the right was waived. The statute of Ed. 
 3, said to be in affirmance of the common law, is, "that 
 no indictor shall be put in inquest upon deliverance of 
 the indictees of felonies or trespass, if he be challenged 
 for that same cause by him who is so indicted." 2 Hawks. 
 418. That, certainly, does not warrant the making of 
 the objection after verdict, if it were known at the time 
 of swearing the jury. In the cases cited for the plaintiff 
 in error, so far as we have had an opportunity of examin- 
 ^ ing them, the objection has not prevailed on a motion for 
 \ a new trial, where it was known at the time for making 
 challeno:es, but was then nei>:lected to be made. There is 
 ' an authority, however, for the contrarj' doctrine, which 
 expressly shows that the exception must be made by chal- 
 lenge, if known in time; and, if neglected then, can not 
 afterwards be made on a motion for a new trial. The 
 State V. O'Driscoll, 2 Bay's Rep. 153. 
 
 The other objection in the petition rests on the misbe 
 
 (134)
 
 I^OVEMBER TERM, 1827. 115-11»3 
 
 Barlow r. The State. 
 
 havior of two of the petit jurors. This point came be- 
 fore the Circuit Court on affidavits. Accordins: to one 
 of these, a juror, after the testimony had been given, con- 
 versed with a person not of the jury respecting the case, 
 and asked him what he thought about the evidence. The 
 deponent was passing bj' them at the time he heard the said 
 remark by the juror, and did not know what further con- 
 versation passed. The affidavit of the juror himself is, 
 that all the conversation he had was, that he asked the 
 person to stay and hear the result of the trial before he 
 went home, and his answer was, that he was obliged to go. 
 These were the only affidavits as to that juror. 
 [*116] Another of the '-^jurors, whilst the cause was pro- 
 gressing, went out of the Court house and stayed 
 a few minutes. His own affidavit is, that, whilst out, he 
 had no conversation with any one; that he was moved to 
 go by a pressing natural occasion, and that he returned 
 as soon as the occasion ceased. The other affidavit on 
 the subject, is not inconsistent with that of the juror. 
 
 We have now stated the substance of the affidavits as 
 to the misconduct of the jurors. That they acted very 
 improperly, there can be no doubt. The one who spoke 
 to a bystander was guilty of a misdemeanor, and liable 
 to punishment : so also was the other, who went out of 
 the house without asking leave of the Court. But 
 whether for this misconduct, the verdict should be set 
 aside, is altogether a diffisrent question. The Circuit 
 Court may have very correctly concluded, from the evi- 
 dence adduced, of the credibility of which they were to 
 judge, that the misconduct of the jurors which we are 
 now considering, and which occurred during the trial, 
 did not in the slightest degree delay, or in any manner 
 interfere with, the full and impartial investigation, and 
 final determination, of the cause; that nothing had taken 
 place calculated to have any influence on the minds of 
 the&e jurors, and that no attempt had been made to tam- 
 per with them in anv wav whatever. 
 
 (13.5)
 
 116-117 SUPREME COURT OF INDIANA. 
 
 Barlow v. The State. 
 
 Where the jury, on the trial of an indictment for a con- 
 spiracy, after the ad^journment of the Court in the even- 
 ing, separated and went to their respective homes, with- 
 out the consent or knowledge of the Court or of the 
 defendant, and attended the next morning at the meeting 
 of the Court, and heard the residue of the case. — it was 
 determined, that such separation of the jury was not of 
 itself sufficient to vacate their verdict against the defend- 
 ant. The King v. Kinnear, 2 Barnew. & Aid. 462. It is 
 true, the case before the Court is of a more important na- 
 ture than that referred to, but the conduct of the jury 
 was so much more reprehensible, and the opportunity of 
 their being tampered with so much greater, in the one 
 case than in the other, that the decision referred to is en- 
 titled to great weight in the determination of the question 
 before us (1). 
 
 We are clearly qf opinion, therefore, that the misbe- 
 havior of these jurors was not such as rendered it obliga- 
 tory on the Circuit Court to grant the new trial applied for. 
 We have now examined the two grounds upon 
 ['''117] which the^counsel for the plaintiff in error have 
 chosen to rest their petition ; neither of which, 
 in our opinion, is sufficient to show that their client is 
 entitled to a rehearing ot the cause. One other excep- 
 tion to the judgment below was made in the argument 
 which took place previously to the affirmance. It was of 
 a different character from those we have just considered 
 and had relation only to the evidence. That objection 
 not being alluded to in the petition for a rehearing, is pre- 
 sumed to have been abandoned by the counsel, and we 
 think correctly ; we have, accordingly, not taken particular 
 notice of it in this opinion. The rehearing is refused. 
 
 Fletcher, Hester, and Gregg, for the plaintili*. 
 
 Whjtcomb, for the state. 
 
 (1) Vide Rex v. Wool/, 1 Cliitt. Rep. 401, and note ; The People v. Douglass, 
 4 Cowen, 26; The People v. Ransom, 7 Wend. 417, 423, 424; Martin's case, 
 2 Leigh, 745; Bosley v. Farfpiar. ante, pp. (51, 67, 70, and note (3). 
 
 END OF NOVEMBER TERM, 1827. 
 
 (130)
 
 [*ii8] * CASES 
 
 ARGUED AXD DETERMINED 
 
 IN THE 
 
 SUPREME COURT OF JUDICATURE 
 
 OF THE 
 
 STATE OF INDIANA, 
 
 AT INDIANAPOLIS, MAY TERM, 1828, IN THE TWELFTH YEAB OP 
 THE STATE. 
 
 Berry v. Bates. 
 
 Agreement to Extend Time — Nudem Pactum. — A., having a promissory 
 note against B. which was due, promised him by parol and without con- 
 sideration that he would not urge the payment until a certain future 
 time. Held, that the promise was not obligatory (a). 
 
 Same — Defence. — An agreement under seal not to sue for a limited time, 
 can not be pleaded in bar as a release : the defendant must resort to his 
 action on the agreement (6). 
 
 ERROR to the Madison Circuit Court. — Bates sued 
 Berry before a justice of the peace on a promissory note, 
 and- obtained judgment. Berry appealed to the Circuit 
 Court, and judgment was there rendered in favor of 
 Bates. 
 
 Scott, J. — The defence set up on the trial below was, 
 that on the third of May, 1827, after the note on which 
 suit was brought had become due, Berry paid Bates a 
 certain other debt of 30 dollars and upwards, and 2 dol- 
 
 {a) 3 Ind. 346. (6) 32 Ind. 40 ; o M. 178; 6 Blkf. 282. 
 
 (137)
 
 118-119 SUPREME COURT OF INDIAITA. 
 
 Modisett v. Lindley and Another. 
 
 lars and- 66 cents in part discharge of the note on which 
 suit was brought; and Bates then agreed, that he would 
 not urge the payment of the balance of the note until 
 Christmas following; and pledged his word and honor to 
 that eflect. The Circuit Court very correctly decided 
 that Bates was not legally bound by that promise. 
 [*119] *Even an agreement under seal, not to sue for 
 a limited time, can not be pleaded in bar as a re- 
 lease. The party, in that case, must resort to his action 
 of covenant as his only remedy. 2 Salk. 573; 5 Bac, 
 Abr. 683; 1 Esp. N. P. 244 (1). The reason of the rule 
 applies more strongly in this case, where a mere verbal 
 promise is set up to control a written instrument for the 
 payment of money. The payment of another debt and a 
 part of that on which suit was brought, after the whole 
 had become due, created no legal consideration for the 
 promise of forbearance; and the promise being made 
 without consideration was not legally binding. The 
 plaintiff's pledge of honor for the performance of his 
 promise does not alter the case^ in a legal sense. He who 
 relies on such security, must, when the pledge fails, abide 
 the consequences; the law will not help him out. 
 
 Per Curiam. — The judgment is affirmed with 5 per cent. 
 damages and costs. 
 
 Wick, for the plaintiff, 
 
 Fletcher and Bromi, for the defendant. 
 
 (1) Vide Reed v. Shaw, Vol. 1 of these Kep. 245, and note. 
 
 Modisett v. Lindley and Another. 
 
 Agency — Authority of Agent. — If an a>;ent execute an obligation for 
 his principal not warranted by the power, the principal, being unapprised 
 of the nature of the obligation, will not be bound by it, though he was in 
 the room when the obligation was executed, and though his subsequent 
 agent conceived himself authorized to comply with similar obligations so 
 executed by the first agent. 
 
 (138)
 
 MAY TERM, 1828. 119-120 
 
 Modisett v. Lindley and Another. 
 
 Same — Partners — Deed of. — Although one partner can not bind his co- 
 partner by deed, yet a deed executed by one for himself and partner, in 
 the other's presence, and by his authority, is the deed of both (a). 
 
 APPEAL from the Yigo Circuit Court. 
 
 HoLMAN, J. — Kitchell, as agent for the defendants un- 
 der an authorit}' by deed, executed certain covenants in 
 favor of the plaintiff, in which he transcended his author- 
 ity in a material part of the covenants. On these cove- 
 nants this action was founded. The defendants pleaded 
 non est factum. On the trial of that issue, the plaintifl" 
 proved by competent testimony, that one of the 
 [*120] two defendants, against whom this suit is *prose- 
 cuted, was in the room at the time Kitchell exe- 
 cuted these covenants, and the witness thought that the 
 other was present also; and that the present agent of the 
 defendants, conceived himself authorized by the defend- 
 ants to take up such covenants as these, executed by Kit- 
 chell in behalf of the defendants in favor of other per- 
 sons. And, thereupon, the plaintiff's counsel prayed the 
 opinion and direction of the Circuit Court to the jury, 
 that these are such facts as will make these acts of Kit- 
 chell, the former agent of the defendants, although not 
 warranted by the original power of attorney given by 
 said defendants to said Kitchell, legally operative upon 
 the said defendants; which direction the Court refused 
 to give; and the defendants received a verdict and judg- 
 ment. 
 
 The question arising out of the refusal of the Circuit 
 Court to give this direction to the jury, is the only point 
 in the case. This question is simply this : Does the 
 presence of one or both of the defendants in the room, at 
 the time when their agent executed these covenants, 
 aided by the opinion of the present agent of these defend- 
 ants, that he considers himself authorized by them to 
 treat such covenants as obligatory on them, amount in 
 
 (a) 5] Ind. 66 ; 49 Id. 521. 
 
 (139)
 
 120-121 SUPREME COURT OF INDIANA. 
 
 Modisett v. Lindley and Another. 
 
 law to a ratilication of these unauthorized acts of Kit- 
 chell, or to an adoption of these covenants as their own, 
 so as to support the issue on the part of the plaintiff, that 
 these are the deeds of the defendants? This question has 
 been investigated with much skill and industry by the 
 counsel on both sides, and many cases have been cited, 
 most of which bear but remotely on the question. 
 
 In the case of Ball v. Dunsterville, 4 D. & E. 313, one 
 partner executed a deed for himself and partner, in the 
 presence and by the authority of his partner, and it was 
 held to be the deed of both. In Harrison v. Jackson, 7 
 D. & E. 206, one partner executed a deed for himself and 
 his two partners, in their absence; and it was held that 
 it was not the deed of the absent partners. Thus it ap- 
 pears that although one partner can not bind his co- 
 partner by deed, yet a deed executed by one for himself 
 and partner, in the other's presence and by his authority, 
 is the deed of both. It is the presence of the partner 
 that does not seal, constituting an implied assent, which 
 is construed into an adoption of the seal as his own, that 
 
 renders it obligatory upon him. In the case be- 
 [*121] fore us, the defendants *were present in the room 
 
 while the agent was executing these covenants; 
 but we can not think that their being in the room consti- 
 tuted a being present, in the sense conveyed in Ball v. 
 Dunsterville. In that case, the partner who did not seal 
 must have been attending to, and cognizant of, what his 
 partner was doing. Apart from such an idea, that case 
 could not be distinguished from Harrison v. Jackson. In 
 this case, the defendants were in the room ; but it does 
 not appear that they were paying any attention to the 
 manner in which their agent was executing the authority 
 they had delegated to him. Besides this, in Ball v. Dun- 
 stermlle the execution of the deed was the principal and the 
 only important circumstance in the transaction. Here, 
 the agent had authority to execute covenants for the de- 
 fendants, and we are led to presume that the covenants 
 
 (140)
 
 MAY TERM, 1828. 121-122 
 
 Modisett V. Lindley and Another. 
 
 lie executed were in their general form similar to those 
 he was authin-ized to execute ; so that the defendants 
 might have been present, so as to know that he was exe- 
 cuting covenants on their behalf, without having their 
 attention directed, by any circumstance, to that particu- 
 lar part of the instrimients in which he was transcending 
 liis authority. And if they did not know the particular 
 form in which these covenants were expressed, their being 
 in the room would not affect the case; as they could not 
 be presumed to sanction that with which it does not ap- 
 pear they were acquainted. Therefore, admitting that 
 although the agent transcended his authority, still if the 
 principals, when they knew what he had done, assented 
 to it either by expression or implication, his acts would 
 be obligatory upon them; yet the plaintiff must fail in 
 this part of the case. 
 
 [N^or can the case derive any aid from the other branch 
 of the testimony. These defendants, it seems, have an- 
 other agent, who is transacting business for them relative 
 to covenants executed by Kitchell, similar to those on 
 which this action is founded, and liable to the same ob> 
 jections ; and he conceives himself authorized by the de- 
 fendants, to take up such covenants as if they were obli- 
 gatory. Now what is the amount of this? Does it show 
 that the defendants had any knowledge of the manner in 
 which these covenants were executed, until they had oyer 
 of them in the present action ? It does not even show, 
 that they knew the form of those other covenants of 
 
 which the agent speaks; consequently they can 
 [*122] not be *supposed to have ratilied or adopted an 
 
 act, of which it does not appear that they had any 
 knowledge. The bare opinion of the agent, as to his au- 
 thority relative to such covenants, is not of such a nature 
 as to sustain an\" legal conclusion against the defendants. 
 If the defendants, knowing how these covenants were 
 drawn, authorized an agent to treat them as obligatory, 
 it would present a different state of things. But, niil-, : ; 
 
 (141)
 
 122-123 SUPREME COURT OF INDIANA. 
 
 Wynn and Another, Executors, v. Hiday. 
 
 tliey possessed such knowledge, we can not conceive how 
 ;my act of theirs could be made to bear upon this ques- 
 tion. They knew that Kitchell had executed covenants 
 on their behalf, and might reasonably presume that he 
 had executed them according to the authority they had 
 delegated to him, and might appoint another agent to 
 perform these covenants for them; but this would form 
 no conclusion against them, if, before the performance, 
 they should discover that Kitchell had exceeded his au- 
 tliority in the execution of the covenants. So that ad- 
 mitting the general doctrine contained in all the cases 
 cited by the plaintiff, yet the want of a knowledge in the 
 defendants that Kitchell had exceeded his authority, de- 
 stroys every ground of conclusion against them, that can 
 be raised either from their being in the room when these 
 covenants were executed, or from their appointing another 
 agent to perform similar covenants for them. A knowl- 
 edge of what was done must necessarily precede any im- 
 plied adoption or ratification of the act; and as we con- 
 ceive that this evidence falls far short of showing that 
 the defendants had such knowledge, we are of opinion, 
 that the evidence will not warrant the idea that the de- 
 fendants have ratified or adopted these acts of their agent, 
 and that therefore the Circuit Court acted correctly (1). 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Jiidah, for the appellant. 
 
 Dewey and Tabbs, for the appellees. 
 
 (1) Vide Posey v. Bulliil, Vol. 1 of these Eep. 99, and note ; Flood v. Yan- 
 des, Id. 102; Deming v. Btdlitt, Id. 241, and notes. 
 
 [*123] *WyxNN and Another, Executors, v. Hiday. 
 
 KoTE— Failure of Consideration— Breach of Warranty.— To debt on 
 a writing obligatory for the payment of money, the defendant pleaded 
 that the obligation had been given for a pair of mill stones, fraudulently 
 represented to be good, but which were of no value («). 
 
 (a) 22 Ind. 51 ; 47 Id. 259 ; 45 Id. 268 ; 5 Blkf. 225, 349 ; 7 Id. 136, 501 : 
 Aid. 349. 
 
 (142)
 
 MAY TKRM, 1828. 123 
 
 AVynn and Another, Executors, i'. Hiday. 
 
 Held, that in this case, and in that of a breach of warranty, if, in addition 
 to the fraudulent representation, or to the breach of Avarranty, the de- 
 fendant prove that the article is of no value, or that it has been returned 
 or tendered within a reasonable time, he defeats the action ; but if it ap- 
 pear that the article is of some value and has not been returned or ten- 
 dered, the plaintiff recovers the value. 
 
 ERROR to the Madison Circuit Court. — This was an 
 action of debt brought by L. Wynn, J. Wynn, and L. 
 Abraham, executors of T. Wynn, deceased, against J. B. 
 Hiday, on a writing obligatory, executed by the defend- 
 ant to the plaintffs' testator for the payment of 62 dol- 
 lars. Pleas, 1st that the obligation was obtained by fraud, 
 covin, and misrepresentation, to wit, by the testator's 
 falsely and fraudulently representing to the defendant 
 that he, the testator, owned a pair of good merchantable 
 mill stones, and by selling them to the defendant; that 
 the mill stones Avere not good and merchantable as rep- 
 resented, but wholly without value ; 2ndly, that the obli- 
 gation was obtained by fraud, covin, and misrepresent- 
 ation — omitting the circumstances of the fraud. Repli- 
 cation to the first plea, denj'ing the fraud and the want 
 of value; and issue. Replication to the second plea, that 
 the obligation was duly obtained; and issue. 
 
 After the evidence was closed, the plaintiffs called on 
 the Court to instruct the jury, that, under the pleas of a 
 total failure of consideration, they could not find a par- 
 tial failure. This instruction the Court refused. Ver- 
 dict in favor of the plaintiffs for 2 dollars, and judgment 
 accordingly. 
 
 Blackford, J. — According to the statute, the defendant 
 may plead to an action on a specialty like the present, 
 the want or failure of the consideration, or of any part of 
 it. The plaintiffs contend, that where there is a plea of 
 a total failure of consideration, under this statute, the 
 whole plea must be proved, or the defence amounts to 
 nothing. In this we think he is mistaken. If the de- 
 
 (143)
 
 123-124 SUPREME COURT OF IXDIA^'A. 
 
 Wynn and Another, Executors, v. Hiday. 
 
 fendant under his plea suitable to the case, of a total 
 failure of consideration, prove, in addition to the 
 [*124] fraudulent *representation8, or to the breach of 
 warranty, that the article is of no value, or has 
 been returned, or tendered, within a reasonable time, he 
 defeats the action. But where the article is worth some- 
 thing, and has not been returned or tendered, the plain- 
 tiif is entitled to the value. This we conceive to be the 
 fair construction of the statute, and one which will pre- 
 vent a multiplicity of law suits, and tend to the further- 
 ance of justice (1). 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Fletcher, for the plaintiffs. 
 Sweetser, for the defendant. 
 
 (1) K. C. 1824, pp. 294, 295. The act of 1831 h the same as that of 1824, 
 and is as follows : "In any action founded upon any specialty or other 
 contract (conveyances of real estate and instruments negotiable by the law 
 merchant excepted,) the defendant, by special plea, may allege the want of 
 a failure of the consideration or any part thereof, of such specialty or other 
 contract; and if any specialty or other contract (excepting as aforesaid) is 
 alleged in any other stage of the proceedings, the other party may aver in 
 answer and prove on trial, the want of failure of the consideration in the 
 whole or part, of such specialty or other contract, and whenever such specialty 
 or other contract shall be given in evidence, without being pleaded, the 
 other party may (excepting as aforesaid) prove the want of failure of the 
 consideration or part thereof, of such specialtv or other contract." R. C. 
 1831, p. 405. 
 
 Assumpsit on a promissory note. Plea, non-assumpsit, except as to a 
 certain sum, and as to that a tender. A notice was attached to the plea of 
 matter intended to be given in evidence, viz : that the consideration of the 
 note declared on was the making of a quantity of jirovision bari'els by the 
 plaintiff for the defendant, under an agreement to manufacture the same so 
 that they would pass inspection under the law regulating the inspection of 
 beef and pork ; that a portion of the barrels were manufactured in an un- 
 skillful manner, and not in compliance with the terms of the contract, 
 whereby the defendant lost the sale of the same. On the trial, the defend- 
 ant oflered to prove the facts set forth in his notice. The evidence was ob- 
 jected to, and the objection sustained. Verdict for the plaintiff. The Su- 
 preme Court, on a motion for a new trial, said, that in Beecker v. Vrooman, 13 
 Johns, R. 302, it is settled, that deceit in the sale of a chattel may be shown 
 in bar, or in mitigation; and that the same principle would admifthe de- 
 fence in the case before the Court, except as to the amount paid into Court. 
 New trial granted. Spalding v.Vfiiukrrooh, 2 Wend. 431. 
 
 Assumpsit in the Common Pleas for, inter alia, 45 dollars, the stipulated 
 price of a cooking stove. The defendant, on trial, in pursuance of a notice 
 attached to his plea, oflfered to ])rove that the plaintiff warranted the stove 
 to draw and carry smoke well and to cook well, and that the stove did not 
 
 (144)
 
 MAY TERM, 1828. 124-125 
 
 Wynn and Another, Executors, v. Hiday. 
 
 draw and carry smoke well ; that after every possible experiment made, it 
 was found it would not draw ; that the bottom plate was warped, and that 
 the plates did not fit together; that the defendant took the stove to the 
 plaintiff and offered to return it, but that the plaintiff refused to receive it 
 back. It was not pretended that there was any fraud in the sale, but it was 
 insisted that the evidence was admissible asaset-off of damages for the breach 
 
 of the warranty, and to reduce the amount of the damages. The evi- 
 [*125] dence was objected to, and the *objection sustained. The Court 
 
 charged the jury, that the plaintiff was entitled to recover the price 
 of the stove. Verdict and judgment for the plaintiff. The defendant took 
 the cause to the Supreme Court by writ of error, and relied on Spalding v. 
 Vandercook, 2 Wend. 431 ; Hills v. 'Bannister, 8 Cowen, 31 ; Locke v. Smith, 10 
 Johns. 250 ; Euni/an v. Nichols, 11 Johns. 547 ; Beecker v. ^'7•oovlan, 13 Johns. 
 302; King v. Paddock, 18 Johns. 141 ; Bastenv. Butter, 7 East, 749; Cormnck 
 V. Gillis, cited in that case, and King v. Boston, there cited in a note. Lewis 
 v. Cosgrave, 2 Taunt. 2; Fisher v. Sumuda, 1 Camp. 190 ; 2 Stark. Ev. 640, 
 644, 645 ; Miller v. Smith, 1 Mason, 437 ; Curtis v. Hnnnuy, 3 Esp. R. 82 ; 
 Jones v. Scriven, 8 Johns. 453 ; White v. T'ra?-d, 9 Johns. 232; Grant v. Button, 
 14 Johns. 377. For the defendant in error were cited, Howlet v. Strickland, 
 Cowp. 56 ; Weigall v. Waters, 6 T. R. 488 ; Gordan v. Bourne, 2 Johns. 150, 155 ; 
 Hepburn v. Hoag, 6 Cowen, 613 ; Sherman v. Ballon, 8 Cowen, 304, 310; Dun- 
 can v. Lyon, 3 Johns. Ch. R. 351, 357, 359 ; Livingston v. Livingstm 4 Johns, 
 Ch. R. 287, 292, 293 ; Weston v. Downes, Doug. 23 ; Powers v. Wells, Cowp. 
 818 ; Towers v. Barrett, 1 T. R. 133; Payne v. Whale, 7 East, 274; Thornton 
 y. Wynn, 12 Wheat. 183 ; Tye v. Gun/nne, 2 Campb. 346 ; Farnsworth v. Gar- 
 rard, 1 Campb. 38, 40 ; Barnard v. Leigh, 1 Stark. R. 43. The defendant in 
 error contended, that it was necessary to show fraud to let in such a de- 
 fence as was offered in this case. 
 
 The Court delivered an elaborate opinion in favor of the plaintiff in error, 
 saying that when the damages arising from a breach of a warranty in the 
 sale of chattels had been allowed to be given in evidence, to reduce the 
 amount of recovery below the stipulated price, the defence was admitted to 
 avoid circuity of action; that a second litigation on the same matter should 
 not be tolerated, where a fair opportunity could be afforded by the first to 
 do final and complete justice to the parties; and that if a defence resting on 
 such a principle was allowed, as they thought it was, in a case of a war- 
 ranty mala fide, they saw no good reason for not allowing it in a case of a 
 warranty bona fide. The authorities cited by the Court, not referred to by 
 the counsel, were Leggetl v. Cooper, 2 Stark. R. 103 ; Frisbee v. Hoffnagle, 11 
 Johns. 50. Judgment of the Common Pleas re versed. JSP Allister'\. Reab, 4 
 Wend. 483. The defendant in error removed the case to the Court of 
 Errors, where, after a full investigation, the judgment of the Supreme Court 
 was aifimied. The opinion, expressed in the Court of Errors by the Chan- 
 cellor, is, that it appeared to be settled in England that, when there has 
 been a .sale either upon a warranty as to the goodness of the article sold, or 
 upon a fraudulent misrepresentation of its value, if a suit be brought on the 
 original contract of sale, the defendant may, upon notice of such defence 
 given with the general issue, prove the fraud or breach of warranty in mitiga- 
 tion of damages ; and that the law was the same, according to the New York 
 decisions, although a bill or note be given for the purchase-money. Beab 
 y. M'Allister, 8 \yend. 109. The authorities mentioned by the Chancellor, 
 in the case last-cited, not noticed in the cause before the Supreme Court, are 
 Fvum V. Grey, 12 Martyn's R. 478 ; Sample v. Looney, 1 Overton's T. R. 85; 
 Poullon v. Luttimore, 4 Man. & Ry. R. 208. S. C. 9 Barn & Cress. 259. 
 
 Poulton v. Laltimore, supra, was decided in 1829. It was an action of as- 
 sumpsit to recover the contract price of a certain quantity of cinq foin seed, 
 ■warranted to be good new growing seed. Plea, non-assumpsit. It was 
 proved that the seed was not good growing seed ; that the defendant had not 
 
 Vol. II.— 10 (145)
 
 125-126 SUPREME COURT OF INDIANA. 
 
 Wynn and Another, Executors, r. Hid ay. 
 
 returned it, but had sowed part and sold the residue; and that the part sold 
 had proved wholly unproductive. Verdict for the defendant. Littledale, 
 .J. — "Where goods are warranted, the vendee is entitled, though he do not 
 
 return them to the vendor, or give notice of their defective quality, to 
 [*r26] bring *an action for breach of the warrant}'; or, if an action be 
 
 brought against him by the vendor for the price, to prove the breach 
 of the warranty, either in diminution of damages, or in answer to the action 
 if the goods be of no value." Judgment for the defendant. 
 
 The following case occurred in 1831 : Assumpsit for the price of a horse 
 sold and delivered. Plea, non-assumpsit. Verdict for the defendant. 
 Eule to show cause why the verdict should not be set aside, and a verdict 
 entered for the plaintiii' for 43/. The cases cited in support of the rule, not 
 mentioned in the opinion of the Court, are Fielder v. /Starkin, 1 H. Bl. 17; 
 Parker v. Palmer, 4 Barn & Aid. 387 ; Hunt v. Silk, 5 East, 449. _ Lord Ten- 
 TERDEN, C. J. — "The facts of the case were these : The plaintifl", on the 2d 
 of February, sold the horse to the defendant for 43/, with a warranty of 
 soundness. " The defendant took the horse, and on the same day sold it to 
 Bailey for 45/. Bailey, on the following day, parted with it in exchange to 
 Osborne ; and Csborne, in two or three days afterward, sold it to the defend- 
 ant for 30/. No warranty appeared to have been given on any of the three 
 last sales The horse was, in fact, unsound at the time of the first sale ; and 
 on the 9th of Februrry the defendant ofifered to return it to the plaintiff, 
 who refused to accept it. The cjuestion for consideration is, whether the 
 defendant, under these circumstances, had a right to return the horse, and 
 thereby exonerate himself from the payment of the whole price ? 
 
 "It is not necessary to decide, whether in any case the purchaser of a 
 specific c/ia//e/, who, having had an opportunity of exercising his judgment 
 upon it has bought it, with a warranty that it is of any particular quality 
 or description, and actually accepted and received it into his possession, can af- 
 terwards, upon discovering that the warranty has not been complied with, 
 of his own will only, without the concurrence of the other contracting party, 
 return the chattel to the vendor, and exonerate himself from_ payment of 
 the price, on the ground that he has never received that article which he 
 stipulated to purchase. There is, indeed, authority for that position. (Cur- 
 tis v. Hannay, 3 Esp. K. 82, and 2 Stark. Ev. 645, are here referred to.) It 
 is, however, extremely difficult, indeed impossible, to reconcile this doctrine 
 with those cases in Avhich it has been held, that where the property in the 
 specific chattel has passed to the vendee, and the price has been paid, he has 
 no right, upon the breach of the warranty, to return the article and revest 
 the property in the vendor, and recover the price a.s money paid on a con- 
 sideration which has failed, but must sue upon the warranty, unless there 
 has been .i condition in the contract autliorizing the return, or the vendor 
 has received back the chattel, and has thereby consented to rescind the con- 
 tract, or has been guilty of a fraud, which destroys the contract altogether. 
 Westm\. Doumes, 1 Doug. 23 ; Towers, v. Barrett,! T. E. 133 ; Payne v. Whale, 
 7 East, 274; Poicer v. Welk, Doug. 24, n.; Emanuel v. Dane, 3 Campb. 299; 
 where the same doctrine was applied to an exchange with a wai-ranty, as to 
 a sale, and the vendee held not to be entitled to sue in trover for the chattel 
 delivered, by way of barter, for another received. If these cases are rightly 
 decided, and we think they are, and they certainly have been always acted 
 upon, it is clear that the purchaser can not by his own act a-lone, unless 
 in the excepted cases above mentioned, revest the property in the seller, and 
 recover the price when paid, on the ground of the total failure of considera- 
 tion ; and it .seems to follow that he can not, by the same means protect him- 
 ,self from the payment of the price on the same ground. On the other hand, 
 the cases have established, that the breach of the warranty may be given in 
 evidence in mitigation of damages, on the principle, as it should seem, of 
 avoiding circuity of action. Cormack-v. Gillis, cited 7 East, 480; King v. 
 
 (146)
 
 MAT TERM, 1878. 126-127 
 
 Patterson v. Kise and Another. 
 
 Boston, 7 East, 481, n. ; and there is no hardship in such a defence being al- 
 lowed, as the phiintifi' ought to be prepared to prove u compliance with his 
 warranty, which is part of the consideration for the specific price agreed 
 
 by the defendant to be paid. 
 [*127] *"It is to be observed, that although the vendee of a specific chat- 
 tel, delivered with a warranty, may not have a right to return it, 
 thcsame reason does not apply to cases of executory contracts, where an 
 article, for instance, is ordered from a manufacturer,"who contracts that it 
 shall be of a certain quality, or fit for a certain purj^ose, and the article 
 sent as such is never t•om}^letely accepted by the party ordering it. In this 
 and similar cases the latter may return it as soon as he discovers the defect, 
 provided he has done nothing more in the meantime than was necessary to 
 give it.a fair trial. Okell v. Smith, 1 Stark. M. P. C. 107 ; nor would the pur- 
 chaser of a commodity, to be afterwards delivered according to sample, be 
 bound to receive the bulk, which may not agree with it ; nor after having 
 received what was tendered and delivered as being in accordance with the 
 sample, will he be precluded by the simple receipt from returning the article 
 within a reasonable time for the purpose of examination and comparison. 
 The observations above stated are intended to apply to the purchase of a 
 certain specific chattel, accepted and received by the vendee, and the proper- 
 ty in which is completely and entirely vested in him. 
 
 "But whatever may be the right of the purchaser to return such a war- 
 ranted article in an ordinary case, there is no authority to show that he may 
 return it where the purchaser has done more than was consistent with the 
 purpose of trial, where he has exercised the dominion of an owner over it, 
 by selling and parting with the property to another, and where he has de- 
 rived a pecuniary benefit fi-om it. These circumstances concur in the pres- 
 ent case; and even supposing it might have been competent for the de- 
 fendant to return this horse, after having accepted it, and taken it into 
 his possession, if he had never parted with it to another, it appears to us 
 that he can not do so after the re-sale at a profit. 
 
 "These are acts of ownership wholly inconsistent with the purpose oi 
 trial, and which are conclusive against the defendant, that the particular 
 chattel was his own ; and it may be added, that the parties can not be 
 placed in the same situation by the return of it as if the contract had not 
 been made, for the defendant has derived an intermediate benefit in conse- 
 quence of the bargain, which he would still retain. But he is entitled to 
 reduce the damages as he has a right of action against the plaintiff for the 
 breach of warranty. The damages to be recovered in the present action 
 have not been properly ascertained by the jury, and there must be a new 
 trial, unless the parties can agree to reduce the sum for which the verdict 
 is to be entered ; and if they do agree, the verdict is to be entered for that 
 sum. Rule absolute on the above terms." Street v. Blay, 2 Barn & Adoi. 
 456. 
 
 Patterson v. Kise and Another. 
 
 Akrest^Justification — Writ. — Although in a justice's warrant for the 
 apprehension of an offender, the time when the offence was alleged to 
 have been committed be subsequent to the date of the warrant, the con- 
 stable is justifiable in executing it. 
 
 (147)
 
 1C>7-128 SUPREME COURT OF INDIANA. 
 
 Patterson v. Kise and Another. 
 
 Same. — If the defendant, in pleading a warirant in justification of an arrest, 
 
 aver that he was an acting deputised constable of the county, the word 
 
 deputised may be considered as surplusage ; and the plea will be good, 
 
 though it do not .set out the defendant's appointment, nor allege that the 
 
 warrant was shown to the plaintiff, nor that it was returned (a). 
 
 f*128] Same — Justification. — *Though two ofTences against the party be 
 
 charged in the warrant, yet, if the justice has jurisdiction over 
 
 both, the constable is bound to execute it. 
 
 AME — Assistance. — A person acting as a special constable to execute a 
 warrant, is authorized to command assistance in-case of opposition. 
 
 ERROR to the Hendricks Circuit Court. 
 
 Scott, J. — To an action of assault and battery, the de- 
 fendants pleaded a justification under a warrant from a 
 justice of the peace; to which plea there was a demur- 
 rer, and judgment for the defendants. 
 
 It is objected, 1st, that the warrant set out in the plea 
 shows, on its face, that it w\as for an oftence committed 
 posterior to its date; 2ndly, that there is no averment 
 that the defendant showed the warrant; 3rdly, that it is 
 not shown that the warrant was returned; 4thly, that the 
 plea does not show the appointment of the constable; 
 5thly, that the warrant purports to be for an aifray or 
 assault and battery over which, jointly, the justice had 
 no jurisdiction ; Gthl}^ that the defendant, Kise, styles 
 himself an acting deputised constable of the county of 
 Hendricks, when our law knows no such officer; and 
 7thly, that although the plea may be a justification to 
 Kise, the constable, yet it is no justification as to "Wilson, 
 who acted as an assistant. 
 
 To the first objection it may be replied, that it was not 
 essential to the validity of the warrant, that the time of 
 committing the offence should be set out. Without such 
 statement, the command of the justice was binding upon 
 the constable. The statement of an impossible time is 
 therefore to be regarded as redundant. See 5 Bac. Abr. 
 415. But were it necessary that the day of the oftence 
 
 (a) 4 Blkf. 171 ; 5 Id. 206 ; 15 Ind. 26, as to return overruled in 4 Blkf. 
 330. 
 
 (148)
 
 MAY TEKxM, 1828. 128-129 
 
 Patterson v. Kise and Another. 
 
 should be expressly stated, a constable has no power to 
 judge in such cases: he was commanded to arrest the 
 oftender and bring him before the justice, and he was 
 bound to obey that command. See 6 Bac. Abr. p. 166; 
 Cro. James, p. 280. To tlie second objection, it is neces- 
 sary only to reply that the defendant, Kise, states that he 
 was an acting constable of the county of Hendricks. The 
 word deputised is redundant and may be rejected. As he 
 was an acting constable of the county, with a justice's 
 warrant in his hand, all persons were bound to recognize 
 him as an otiicer and obey him accordingly. This also, 
 is an answer to the fourth and sixth objections ta 
 [*129] the plea. The third *point has the sanction of 
 some authorities. It was formerly held, that, 
 where an officer justilies under a process which is return- 
 able, he must show that it has been duly returned; but 
 the later decisions do not require a return, and w^e think 
 they are more consistent with justice, and founded on 
 better reason. See Be.alls v. Guernsey, 8 Johns. R. 52, and 
 the authorities there cited. The fifth objection is obvi- 
 ated by a reference to the statute, R. C. 1824, p. 236, where 
 jurisdiction is expressly given to justices of the peace, of 
 assaults and batteries, and aftrays, &c. ; and two offences 
 being named in the warrant, could not justify the con- 
 stable in disobeying the command of the justice, who had 
 jurisdiction of both or either of them. If we can under- 
 stand anything by the seventh objection, it is the idea of 
 the plaintiff's counsel that the defendant, Kise, was act- 
 ing as a special constable for that particular occasion, and 
 that in that capacity he had no power to command assist- 
 ance in case of opposition. The contrary doctrine, we 
 think, is clearly deducible from our statutes. R. C 1824, 
 pp. 82. 246 ; and it is also settled by various decisions. 
 See 1 Litt. R. 268 ; 2 Litt. R. 367 ; 8 Johns. R. 54. 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Brown and Gregg, for the plaintiff. 
 
 Fletcher, for the defendants. 
 
 (149)
 
 129-130 SUPREME COURT OF INDIANA. 
 
 Sweny and Others v. Ferguson, Adm'x, and Others. In Chancery. 
 
 SwENY and Others v. Ferguson, Administratrix, and 
 Others. In Chancery (a). 
 
 THE heirs of Sweny filed a bill in chancery against 
 the administratrix and the heirs of Ferguson. The bill . 
 states that Ferguson, deceased, was the administrator of 
 the estate of the complainant's father; that he sold the 
 property which came into his hands as administrator for 
 a large amount, the most of which he converted to his 
 own use; and that his estate is insolvent. It further 
 states that Ferguson, in his life-time, conveyed a certain 
 tract of land to his son, one of the defendants, for the 
 purpose of defrauding the complainants. The prayer of 
 
 the bill is, that a decree be rendered for the 
 [*130j *amount of the complainant's claim, and that the 
 
 land so fraudulently conveyed be sold to satisfy 
 the same. The bill was taken ^;ro confesso. 
 
 The Court, on examination of the bill, allegations, and 
 proofs, decreed that the defendants should pay to the com- 
 plainants the sura of 491 dollars; and, if the same were 
 not paid on service of a copy of the decree, the land 
 should be sold, &c. 
 
 Rapp v. Grayson, on Appeal. 
 
 Commission Merchant — Liability — Custom (6). 
 
 THE refusal of the Court to give instructions to the 
 jury, which are good law but not applicable to the case, 
 can not be assigned for error. 
 
 The usages of commerce regulate the duties and privi- 
 leges of commission merchants, and generally form their 
 contracts in business; which usages are matters of fact, 
 and susceptible of proof. 
 
 (a) 4Ind. 546. 
 
 (b) 23 Ind. 399 ; 10 Id. 325. 
 
 (150)
 
 MAY TERM, 1828. 130-131 
 
 Kapp r. Grayson, on Appeal. 
 
 It is as much the tlutj of a commission merchant to 
 obey instructions, with re_o-ard to the shipping of goods 
 deposited with liim to be shipped, as it is to keep them 
 safely while in his care. This duty devolves on all who 
 are acting for him as clerks or agents; and, while they 
 are recognized as acting for him, their authorit}^ must be 
 presumed to be co-extensive with his, as to the business 
 he is thus transacting by them. 
 
 G. deposited goods in the warehouse of R., a commis- 
 sion merchant, and R. agreed to ship the goods to a cer- 
 tain place by a good boat, but not with W. and his boat. 
 R., afterwards, shipped the goods with W. and in his 
 boat. Held, m case the goods were lost, — iirst, that R. 
 ■was liable to G. for the damages sustained by the loss, 
 and that he would have been so liable, had he merel}^ con- 
 tracted for the safe keeping of the goods; secondly, that 
 even if R. were not bound, in law, to obey the instruc- 
 tions given him as to the shipping of the goods, he would 
 still be subject to the action of G. for delivering the goods 
 to W. contrary to those instructions; thirdly, that though 
 G. might have recovered against W., and the recovery 
 would have barred a subsequent suit against R., yet G. 
 was not bound to resort to W. But it was also 
 [*131] held, that the action by G. against *R. could not 
 be sustained without proof of the loss of the 
 goods. 
 
 If the evidence, relative to the merits of the action, be 
 contradictory, and the jury have an}' grounds for their 
 verdict in favor of the plaintiff, a Court of errors will not 
 reverse a judgment on the verdict, because a new trial 
 had been refused. Aliter, if there was no evidence of a 
 fact essential to the support of the action. 
 
 (151)
 
 131 SUPREME COURT OF INDIANA. 
 
 King, Administrator, v. Anthony, Administrator. 
 
 King, Administrator, v. Anthony, Administrator. 
 
 Judgment — Error in — Cured — Practice. — Assumpsit against an admin- 
 istrator on promises of the intestate. Pleas, non-assumpsit, the statute 
 of limitations, and plene administravit. Judgment against the defend- 
 ant de bonis propriis. Held, that as neither of the pleas was false within 
 the defendant's knowledge, the judgment de bonis propriis was erroneous ; 
 but that as this was only a clerical mistake, time would probably be given 
 for its amendment below, were there no other error in the case (a). 
 
 Same — Finding — Practice. — In an action against an administrator, if, on 
 the pleas of non-assumpsit and plene administravit, the jury find for the 
 plaintiff, they should also find the amount ol the assets in the defend- 
 ant's hands unadministered (6). 
 
 Pleading — Duplicity — Waiver. — If two replications be filed to .one plea, 
 the defendant may demur specially for the duplicity ; but a rejoinder to 
 the replications cures the objection. 
 
 Parties — Joint — Judgment. — If the plaintiff, in an action against two, pro- 
 ceed to judgment against-one alone, and the record do not contain a re- 
 turn of the writ that the other had not been found, and 3, suggestioB of 
 such a return, the judgment will be reversed on error (c). 
 
 ERROR to the Vanderburg Circuit Court. 
 
 Blackford, J. — Assumpsit by tlie administrator of Jon- 
 athan Anthony, against Thornberry and his wife, admin- 
 istratrix, and King, administrator, of James Anthony. 
 There is no return of the writ in the record, nor a sug- 
 gestion, showing that any of the defendants had not been 
 found. King appeared and pleaded, first, non-assumpsit; 
 secondly, the statute of limitations; thirdly, plene admin- 
 istravit. Issue was joined on the first plea. To the sec- 
 ond, there were two replications : one, that fhe case was- 
 within an exception of the statute; the other, denying 
 the plea generally. Rejoinder and issue as to the first, 
 replication ; and an issue on the second. To the third 
 plea the plaintiff" replied that the defendant had assets; 
 and on that, issue was joined. The verdict was as fol- 
 lows: "We of the jury find for the plaintiff' and assess. 
 
 (a) Post, 459. (b) 5 Blkf. 44. (c) Post, 142 ; 8 Blkf. 100 
 
 (152)
 
 MAY TERM, 1828. 131-132 
 
 King, Administrator, v. Anthony, Administrator. 
 
 his damages at 1,000 dollars." A motion for a 
 [*132] *new trial was made and overruled, and the fol- 
 lowing-judgment rendered : *' It is on motion con- 
 sidered by the Court, that the plaintiff recover the sum 
 aforesaid by the jury assessed, with interest thereon till 
 paid, together with costs, &c." 
 
 The judgment in this case being de bonis 'propriis, is 
 erroneous. None of the pleas can be considered false 
 within the defendant's own knowledge, like that of ne 
 unques executor, or a release to the defendant (1). As 
 this is, however, only a clerical mistake, Short v. Coffin, 5 
 Burr. 2730, time would probably be given for its amend- 
 ment in the Court below, were there no other error in 
 the case (2). But the verdict is also erroneous. On the 
 pleas of non-assumpsit by the intestate, and plene admin- 
 istravit by the administrator, the jury finding both issues 
 for the plaintiff, should have not only assessed the dam- 
 ages for the not performing of the promises, but should 
 have»also found the amount of the assets in the hands of the 
 administrator unadministered ; the administrator being 
 liable no further than for the assets in his hands. Fair- 
 fax's Executor V. Fairfax, 5 Cranch, 19; Siglar, Admr. v. 
 Haywood, 8 Wheat. 675. 
 
 The objection to the proceedings, on account of their 
 being two replications to one of the pleas, comes too late. 
 It is true, that the statute of Anne, authorizing double 
 pleading, does not extend to replications, 1 Chitt. PI. 
 549; neither does ours, R. C. 1824, p. 292. But duplicity 
 in pleading can only be taken advantage of by special 
 demurrer. 1 Chitt. PI. 513. In this case, the defendant 
 rejoined to both the replications; and that put an end to 
 his right to the objection he now makes. 
 
 One of the defendants in this action appeared and 
 pleaded, and the plaintiff proceeded against him alone. 
 There is no return of the writ in the record, that the 
 others had not been found, nor any suggestion of such 
 
 (153)
 
 132-133 SUPREME COURT OF INDIANA. 
 
 Evill V. Conwell. 
 
 retura; both of which were necessary to warrant this 
 proceeding. R. C. 1824, p. 290 (3). 
 
 Per Curiam. — The judgment is reversed, &c. Cause 
 remanded, &c. 
 
 Hall, for the plaintiff". 
 
 Judah, for the defendant. 
 
 (1) Vide note to Weathers v. Newman, Vol. 1 of these Eep. 233. 
 
 (2) Vide Songer v. Walker, Vol. 1 of these Rep. 251, and note. 
 
 (3) Vide Morris v. Knight, Vol. 1 of these Eep. 106, and note. E. C 
 1831, V. 400. 
 
 [*133] *EviLL V. Conwell. 
 
 Trespass — Forcible Entry — Evidence. — A. removed from a house and 
 lot, leaving a few articles in the house and on the lot, and fastening the 
 door. In the night of the second day afterwards— the door being proved 
 to have been still fast on the evening of that day — B. entered into the 
 house and put a tenant in possession, directing him to prevent every per- 
 son, and A. particularly, from taking possession, and threatening to beat 
 and prosecute any one who should enter on the premises. There was no 
 direct proof, however, that B. broke open the door. On the complaint of 
 A. against B. for forcible entry and detainer, held, that the evidence would 
 justify a finding against the defendant as to the forcible entry; and that 
 it was clear against him as to the forcible detainer, which, under the stat- 
 ute, entitled the plaintiff to restitution (a). 
 
 ERROR to the Dearborn Circuit Court. 
 
 Scott, J. — Luke Evill brought an action of forcible en- 
 trj^ and detainer against Elias Conwell, before two justices 
 of the peace of Dearborn county, and had a verdict and 
 judgment in his favor; from which Conwell appealed to 
 the Dearborn Circuit Court. The appeal, by consent of 
 parties, was tried by the Circuit Court, without the inter- 
 vention of a jury; and on that trial the judgment of the 
 Court was in favor of Conwell. To reverse that judg- 
 ment is the object of the present writ of error. 
 
 (a) 6 Ind. 273. 
 
 (154)
 
 MAY TERM, 1828. 133-134 
 
 Evill I'. Con well. 
 
 The testimony, as set out in a bill of exceptions, is in 
 substance as tbllows : On the premises in controversy 
 there was a dwelling house and garden, enclosed with a 
 fence. On a Friday in March, 1825, Evill, the plaintift" 
 in error, left the premises and moved his family and fur- 
 niture into a house in the town of Aurora, leaving in the 
 house some sash and a work bench, and on the premises 
 a quantity of brick, lime, some garden stufl:', and a cow. 
 The doors of the dwelling house were shut and fastened 
 with latches, and the latches secured with nails over them. 
 In this situation the premises were seen on the Sunday 
 evening after the plaintiff' left them. On that night, after 
 dark, and after the witness had undressed for bed, he was 
 called upon by the defendant to go with him to take pos- 
 session of the premises; and on Con well's agreeing to see 
 him harmless, the witness took his wife and bed and went 
 to the house and found the outer door open, by which they 
 
 entered ; and Conwell delivered possession to the 
 [*134] witness and gave him a lease for three years,*with 
 
 instructions not to permit Evill, or any other per- 
 son, to take possession of the place ; and the witness has 
 ever since that time occupied the premises as tenant under 
 Conwell. A day or two afterwards, persons sent by the 
 plaintift^'s directions were turned away by the tenant. 
 One witness stated, that, while hunting his cattle for the 
 purpose of hauling away the lime, at the plaintift^'s re- 
 quest, from the said premises, and before he came to or 
 near the place, he was met by Conwell, who, being in- 
 formed of his design, forbade his going on the premises, 
 and threatened to beat and prosecute any person who 
 should go upon them; in consequence of which threaten- 
 ing the witness desisted. It was not proved that Conwell 
 was ever afterwards on the premises. 
 
 In this case, the only doubtful point seems to be whether 
 Conwell, in taking possession, made use of such force as 
 to lay him liable to this action. There is nothing in the 
 testimony before us amounting to positive proof that Con- 
 
 (155)
 
 134-135 SUPEEME COURT OF INDIA^^A. 
 
 Modisett v. The Governor, on the relation of Williams. 
 
 well, in making his entry, used any actual violence. But 
 we think the facts of his taking possession in the dead of 
 night, and entering a house which was, in the evening, 
 secured by having a nail over the latch; his directions to 
 his agent to prevent all persons, and the plaintift" in par- 
 ticular, from getting possession ; and his maintaining that 
 possession with threats of personal violence; Avere, all 
 taken together, sufficient to justify the Circuit Court in 
 finding a forcible entry. But even if his entry by stealth, 
 under the shade of night, was without force, our statute 
 gives this remedy where the entry may have been peace- 
 able, but the possession maintained with force and strong 
 hand. The testimony, in this case, leaves no doubt of 
 Conwell's maintaining his possession with threats and 
 strong hand: his agent on the premises actually turned 
 away persons who were sent there by Evill ; and he him- 
 self threatened to beat any person who should go upo>t 
 the land. For this reason we think the plaintiff was er 
 titled to restitution (1). 
 
 Per Curiam. — The judgment is reversed with cost? 
 Cause remanded, &c. 
 
 Dunn, for the plaintiff. 
 
 Stevens and Lane, for the defendant. 
 
 (1) E. C. 1824, p. 212. K. C. 1831, p. 265. 
 
 f*135] ^Modisett v. The Governor, on the relation of 
 
 Williams. 
 
 Official Bonds — Liability of Surety — Act of Officer in Satisfying 
 Judgment. — If satisfaction of a judgment be cntereil by a justice of the 
 peace on his docket, he and his sureties are liable for the amount to the 
 judgment-creditor; no matter for what consideration the satisfaction was 
 entered, unless the creditor was a party to the arrangement (o). 
 
 (a) 3 Blkf. 72 ; 4 Id. 129. 
 
 (156)
 
 MAY TERxM, 1828. 135-136 
 
 Modisett r. The Governor, on the relation of Williams. 
 
 Evidence— Proof of Execution of Receipt. — In the docket of justice A., 
 wliieh, for some reason- not shown, was in justice B.'s hands, there was a 
 receipt purporting to be signed by B. of a judgment there entered : Held, 
 that the receipt was not admissible as evidence against B., without proof 
 of his having executed it. 
 
 APPEAL from the Vigo Circuit Court. 
 
 Holm AN, J. — Scire facias against Graham, a justice of 
 the peace, and King and Modisett his sureties ; charging 
 that Graham, as a justice of the peace, had collected the 
 amount of several judgments entered in favor of Mark 
 Williams on the docket of Joel Downey, a late justice of 
 the peace, deposited with said Graham; and had failed 
 to pay the money over to the said Williams. Modisett 
 pleaded severally, that Graham had not received the said 
 sums of money, and neglected and failed to pay the same, 
 as charged in the declaration. On which plea, the plain- 
 tiff joined issue. Verdict and judgment for the plaintiff. 
 
 On the trial, as appears by a bill of exceptions, the de- 
 fendant offered in evidence the declarations of Williams, 
 that Graham had never received any money as charged 
 in the declaration ; and also offered to prove that the 
 judgments of Williams against King, the amount of 
 which the plaintiff' claimed in this action, had been en- 
 tered satisfied, not by a payment in money, but by King's 
 promissory note. But the Circuit Court rejected this 
 evidence; being of opinion that, unless it was made to 
 appear that a combination had been entered into by 
 Williams, Graham, and King, to defraud the defendant, 
 this evidence could not go to the jury. This decision 
 was correct. When a judgment of a justice of the peace 
 IS regularly entered satisfied, the plaintiff*, in order to 
 obtain his money, must resort to the justice. He can not 
 take out execution on the judgment after satisfaction is 
 entered on the docket, notwithstanding he might 
 [*1 36] know that the satisfaction had been entered *with- 
 out a payment of the money. The ofiicial entry 
 on the docket is conclusive against the justice and his
 
 136 SUPREME COURT OF INDIAiS'A. 
 
 Modisett v. The Governor, on the relation of Williams. 
 
 sureties, and the plaiiititt' has a right of action against 
 them for his money, without any reference to the man- 
 ner in which the judgment has been satisiied. If Wil- 
 Haras had assented to such a discharge of his judgment, 
 or had in anj^ way comljined witli Graham or King, for 
 the purpose of rendering Modisett hable for the amount 
 of the judgments, such facts might have been shown in 
 the defence. But the evidence here offered goes only to 
 the knowledge of Williams that no money was paid, and 
 does not pretend to show that he assented to, or was in 
 any way concerned in, the transaction. The evidence 
 was therefore properly rejected. 
 
 Another bill of exceptions states, that the plaintiff 
 offered in evidence, to support the issue on his part, a 
 paper reputed to be the docket of justice Downey, appear- 
 ing to be signed by said Downey as such justice, and con- 
 taining certain reputed receipts of justice Graham; after 
 having only proved that the said docket, in the possession 
 of said Graham, appeared to be signed by said Graham, 
 as such justice; without having proved any license to 
 intermeddle with the judgments upon said docket, ac- 
 cording to the act of assembly in such case made and 
 provided, or any other authority; and without having 
 proved that Graham wrote said receipts, or that the same 
 were in his hand-writing. To the admission of which 
 paper in evidence, the defendant objected; but the Cir- 
 cuit Court overruled the objection, and permitted it to 
 go as evidence to the jury. These reputed receipts of 
 Graham were not admissible as evidence without proof 
 of their execution. And we consider the expressions in 
 this bill of exceptions, though somewhat obscure, as 
 showing that there was no proof of their execution. The 
 language of the bill is that they were admitted in evi- 
 dence, witliout any proof that they were written by Gra- 
 ham, or were in his hand-writing. Their being on a 
 paper, reputed to be the docket of another justice of the 
 peace, which was found in Graham's possession, can not 
 
 (158)
 
 MAY TERM, 1828. 136-1; ( 
 
 Lambert i'. Sandford. 
 
 alter their character, unless it was shown that Graham 
 had authority to intermeddle with the judgments on that 
 docket; and as it is said that no such authority was 
 shown, the receipts must stand as if they were on any 
 other paper; and their execution should have 
 [*137] been proved before ^'they were admitted as evi- 
 dence. The Circuit Court therefore, acted incor- 
 rectly in admitting this reputed docket, containing these 
 reputed receipts, to go in evidence to the jury. 
 
 Per Curiam. — The judgment is reversed, and the ver- 
 dict set aside, with costs. Cause remanded, &c. 
 Tabbs, for the appellant. 
 
 Deicey, for the appellee. 
 
 Lambert v. Sandford. 
 
 Ees Adjudicata — Nolle Prosequi. — A nolle prosequi to the whole declar- 
 ation has the effect, not of a retraxit, but of a discontinuance ; and is no 
 bar to a subsequent suit for the same cause. 
 
 Attorney — Authority of. — An attorney at law has no authority to enter 
 a retraxit; that being a perpetual bar. 
 
 Practice — Reversal. — A judgment will not be reversed because a motion 
 for a new trial, made on the ground of a verdict's being contrary to evi- 
 dence, has been overruled ; unless it be clear that the verdict is not war- 
 ranted by the evidence (a). 
 
 Bill of Exchanc4E— Extension of Time — Eelease. — If the payee of a 
 bill of exchange, accepted for the drawer's accommodation, give time to 
 the drawer without the acceptor's knowledge, the latter is not thereby 
 discharged ; though the payee knew that the acceptance was made for 
 the drawer's accommodation (6). 
 
 ERROR to the Vigo Circuit Court. 
 
 Blackford, J. — Sandford, as the indorsee of Boudinot, 
 brought this action of assumpsit against Lambert, as, the 
 acceptor of a bill of exchange, drawn by Hamilton in 
 
 (a) 35 Ind. 356; 37 Id. 361. 
 
 (b) 7 Blkf. 363; 35 Ind. 304; 55 Id. 45; 43 Id. 163; 51 Id. 124. 
 
 (159)
 
 137-138 SUPKEME COUKT OF INDIANA. 
 
 Lambert v. Sandford. 
 
 favor of Boudinot, cashier. The defendant, Lambert, 
 pleaded, iirst, non-assumpsit; on which issue was joined. 
 He pleaded, secondly, that the bill became the property 
 of the- bank of Vincennes by the blank endorsement of 
 Boudinot, cashier, and his delivery thereof to the bank; 
 that the bank, owners of the bill, sued the defendant, 
 Lambert, thereon ; and after service of the writ, and after 
 the defendant had pleaded, the parties appeared by their 
 attorneys, and the plainiiiFs would not further prosecute 
 their suit, therefore it was considered that the plaintiffs 
 should take nothing by their writ, but be in mercy, &c., 
 and that the defendant should go thereof without day. 
 To this plea, there was a general demurrer, and judgment 
 for the plaintifl". The defendant pleaded, thirdly, that on 
 the first of July, 1822, the charter of the bank of Vin- 
 cennes became forfeited, and its franchises were 
 [*138] seized by the state ; and that, at the time *of the 
 forfeiture and seizure, the bill belonged to the 
 bank. To this plea the plaintiff replied that, at the time 
 of the seiz,ure, the property of the bill was not in the 
 bank. On this replication issue was joined. 
 
 On the trial of the issues, the defendant offered to prove 
 that he accepted the bill for the accommodation of the 
 drawer, which was known at the bank when the bill was 
 discounted ; that after tlie bill became due, the bank stop- 
 ped the drawer at yincennes, on his way down the river, 
 in May, 1821, in consequence of the non-payment of the 
 bill, and then agreed to give him three months for pay- 
 ment from the time the bill became due, on his paying 
 the discount; that the discount was paid, and the credit 
 given, without the knowledge of the defendant ; and that 
 the drawer was, at the time of this arrangement, able to 
 pay. This testimony was objected to, and the objection 
 sustained. 
 
 At the trial it was admitted, that the franchises of the 
 bank were seized on the first of July, 1822. The plain- 
 tiff proved the signatures of the acceptor, endorser, and 
 
 (160)
 
 MAY TERM, 1S28. 138-139 
 
 Lambert v. Sandford. 
 
 drawer. He proved that on the 8th of February, 1822, 
 Hart, as attorney of Sandford, the plaintiff, gave notice 
 to the defendant, that the bank had assigned the bill to 
 Sandford. He proved that Tabbs, as attorney of the bank, 
 in the fall of 1821, or winter of 1822, had Hied a declara- 
 tion against Lambert on the bill; that the bill, when de- 
 livered to him, belonged to the bank; that shortly after 
 the commencement of the suit for the bank, it was con- 
 ducted by him and Hart under the impression that the 
 propert}' was in Sandford ; that from the spring or win- 
 ter of 1822, he considered the bill as the property and 
 under the control of Sandford; that the bill was always 
 in Tabbs' possession from its deliver}^ to him until it was 
 filed in the papers of the suit; that Sandford never had 
 actual possession of the bill; that Tabbs had only been 
 attorney for Sandford, as to this bill, since Hart's death 
 in December, 1822; that the endorsement on the bill, 
 " Pay to Isaac Sandford or to his order," was made at the 
 April term, 1825 ; that Tabbs' receipt to the bank for col- 
 lection had been returned to him ; and that the suit of 
 the bank against the defendant was dismissed at the Oc- 
 tober term, 1824. 
 
 This was all the evidence in the cause. The jury gave 
 
 a verdict for the plaintiiF for 1,020 dollars in dam- 
 
 [*139] ages; a motion for *a new trial was made and 
 
 overruled; and judgment rendered according to 
 
 the verdict. 
 
 The plaintiff in error relies upon three grounds for the 
 reversal of the judgment: 1st, that the second plea was 
 a good bar, and the demurrer to it should not have been 
 sustained ; 2d, that the Court should have granted a new 
 trial, the plaintiff below having failed to prove any prop- 
 erty in the bill; 3d, that the evidence offered as to the 
 discharge of the defendant, on account of time given to 
 the drawer, should have been admitted. 
 
 As to the first objection, assuming that the suit of the 
 bank was disposed of by a 7ioUe prosequi, which is the most 
 YoL. II.— 11 (161)
 
 139-140 SUPREME COUHT OF INDIANA. 
 
 Lambert v. Sandforci. 
 
 that the plaintiff in error contends for, we think the laAV 
 is against him. It has been held that a Jiolle prosequi can 
 not be distinguished in reason from a discontinuance, for, 
 in either, the party may after\A\ards commence another 
 action for the same cause. Cooper v. Tijfin, 3 T. R. 511. 
 And in a late valuable book on practice, one of the 
 grounds on which a nolle prosequi to the whole declaration 
 is distinguished from a retraxit is, that the former is not 
 a bar to a future action for the same cause. 2 Arch. Prac. 
 250. Besides, the plea states this disposition of the cause 
 to have been made by the attorney; who had no author- 
 ity to enter a retraxit, because that is a perpetual bar. 
 Kellogg v. Gilbert, 10 Johns. R. 220. If a nolle prosequi, 
 therefore, when made in person, were a bar to another 
 suit, it would not be so in this case, the entry here being 
 by attorney. 
 
 The second objection is not more substantial than the 
 first. It is true, that the evidence is not clear, as to 
 whether the property of the bill was in Sandford, or in 
 the bank, a{ the tfime the franchises of the corporation 
 were seized. ,The endorsement of Boudinot, the payee, 
 was in blank. The gentleman who had the bill, and was 
 the attorney for the bank, considered it, for a consider- 
 able time before the seizure, as the property of Sandford, 
 and under his control. His reasons for so considering it, 
 are not stated. If the defendant below supposed them 
 insufficient, he should have inquired what they were. 
 The jury to whom the question was submitted, after 
 hearing a variety of testimony, have determined it in 
 favor of the plaintiff below, and the Court in which it 
 was tried has refused to disturb the verdict. Con- 
 [*140] sidering the point, as we do, a doubtful one, *it 
 becomes us, as an appellate Court, to let it rest 
 where it is. 
 
 The third objection is one of more difficulty. A bill is 
 accepted for the drawer's accommodation ; and a bank, 
 knowing that, discounts it for the drawer. The bill be- 
 
 (162)
 
 MAY TERM, 1828. 140 
 
 Lambert ;. Sandford. 
 
 comes due, and the bank gives the drawer an additional 
 credit, without the knowledge' of the acceptor. The 
 question is, does this indulgence to the drawer discharge 
 the acceptor, as to a holder who received the bill after it 
 became due? The plaintiii' in error contends, that the 
 acceptor here is only a surety, and refers to a case in 
 Hardress, 485. Should that case be thought to bear upon 
 this, it is answered by Raborg v. Peyton, 2 Wheat. 385, 
 which expressly overrules it. Indeed, without going fur- 
 ther, this latter decision settles the point, that the accept- 
 or, whether for the drawer's accommodation or not, is a 
 principal, and not a surety, as to the payee. The Court 
 says, that, ^^ prima facie, every acceptance affords a pre- 
 sumption of funds of the drawer in the hands of the ac- 
 ceptor ; and is, of itself, an express appropriation of those 
 funds for the use of the holder. The case may, indeed, 
 be otherwise; and then the acceptor, in fact, pays the 
 debt of the drawer ; but as between himself and the payee 
 it is not a collateral, but an original and direct undertak- 
 ing. The payee accepts the acceptor as his debtor, and 
 he can not resort to the drawer but upon a failure of due 
 payment of the bill." In the case before us, the bank 
 lent the money to Hamilton upon the security of this bill ; 
 that Lambert should be the acceptor, and therefore liable 
 as the principal, was the consideration of the loan. Had 
 it been otherwise, it is fair to presume that Hamilton 
 would have been the acceptor. The bank's knowledge 
 that the acceptance was for the drawer's accommodation, 
 is not considered material ; for it was not, in our opinion, 
 essential to the validity of the bill, or to its legal effect 
 according to its face, as respected the payee, that the ac- 
 ceptor should be benefited by the consideration. In this 
 view of the subject, the time given to Hamilton, can not 
 affect the responsibility of Lambert, the principal in the 
 contract. He was liable to a suit on his acceptance at 
 any time after the bill became due, and could derive no 
 benefit, not even of delay, from the bank's arrangement 
 
 (163)
 
 140-141 SUPREME COURT OF INDIAXA. 
 
 Peck and Others v. Brnman and Others, in Error. 
 
 with the drawer for time, !N either could the indul^-ence 
 to the drawer operate to the injury of the acceptor; for 
 
 if before the expiration of tlie time given, Lani- 
 [*141] bert had been *conipelled to pa}', his remedy over 
 
 against Hamilton would not have been retarded 
 by the arrangement between the latter and the bank, with 
 which Lambert had no concern, and by which he could 
 not be bound. As to this third ground relied on by the 
 plaintiff in error, his strong authority is Laxton v. Peak, 
 2 Campb. N. P. 185. That case, however, is contradicted 
 b}' the subsequent one oi Fentam v. Pocock, 5 Taunt. 192, 
 cited by the defendant in error. The latter is in accord- 
 ance with our ideas of the law (1). 
 
 Per Curiam. — The judgment is affirmed with 1 per cent. 
 damages and costs. " 
 
 Judah and Dewey., for the plaintiff. 
 Tabbs, for the defendant. 
 
 (1) Vide on this subject, Kerrison v. Cooke, 3 Campb. 362 ; Adams v. Gregg, 
 2 Stark. R. 531 ; Hilly. Read, D. & R. 26. The drawer is not discharged by 
 the giving of time to the accommodation acceptor. Collet v. Haigh, 3 Campb. 
 281. Nor, if t'.ie acceptor be the agent of the drawer, is the latter dis- 
 charged by time given to tlie former. Clarke v. Noel, Id. 411. In a very 
 late case, Parke, J., says : " I tliink that the decision in Fentum v. Pocock, 
 where it was held that the acceptor of an accommodation bill was not dis- 
 charged by giving time to the drawer, is good sense and good law." Price 
 V. Edmunds, 10 Barn. & Cress. 578. 
 
 Peck and Others v. Braman and Others, in Error. 
 Infants-Right to Compel Guardian to Account (a). 
 
 AN infant, after his guardian's death, has a right to 
 compel a settlement of his accounts as if he were of age ; 
 the guardian's trust being personal, and terminating at 
 his death. Bac. Abr. tit. Guardian. 
 
 In the case of a guardianship until the ward is of full 
 age, the general rule is, that the ward must be of age be- 
 
 (a) 8 Blkf. 15 ; 15 Ind. 230. 
 
 (164)
 
 MAY TERM, 1828. 141-142 
 
 Peck and Others v. Bra man and Others, in Error. 
 
 fore he can require his guardian to account; yet. in chan- 
 cery, a ward may, during his minority, call such a guard- 
 ian to account, if anything should occur which makes it 
 necessary. lb. 
 
 The guardianship of minors, and the adjustment of 
 their accounts, form a conspicuous branch of chancery 
 jurisdiction. lb. 2 Fonb. Eq. 225—251 ; Beaufort v. Berty, 
 1 Peere Wms. 702; 1 Bl. Comm. 463. 
 
 The extension of the jurisdiction of Courts of 
 [*142] law, in modern *times, to cases which were form- 
 erly subjects of equitable jurisdiction only has not 
 destroyed the jurisdiction of Courts of equity. Kemp v. 
 Pryo)\ 7 Ves. 249. 
 
 "When accounts are intricate and difficult, a bill in 
 equity is the more usual and suitable proceeding to com- 
 pel an account; being best calculated to do justice be- 
 tween the parties; since the plaintiff' can thereby obtain 
 a discovery of books and papers, and have the benefit of 
 the defendant's oath; who, on the other hand, is entitled 
 to all both legal and equitable allowances. Paley on 
 Agency, 57. 
 
 The heirs of A., some of whom were infants, and his 
 representatives, tiled a bill in chancery against the heirs 
 and representatives of B. The bill stated that B., the 
 guardian of A.'s heirs, having contracted to sell their 
 knd to C, procured an order of the Court in Connec- 
 ticut, where the land was situated, authorizing its sale by 
 D. ; that D., pursuant to the order, sold and conveyed 
 the land to C. for 1,500 dollars, which amount had neariy 
 all been received by B. ; that bonds to the Court were 
 executed by D. and E., conditioned that B. should vest 
 the purchase-money in other land for the heirs of A., or 
 lay it out for their nurture, education, or advancement, 
 and should account to the Court when required, or to the 
 heirs when they should come of age: that B having mar- 
 ried the widow and administratrix of A., became possessed 
 of the intestate's personal estate to a considerable amount: 
 
 (165)
 
 142-143 SUPREME COURT OF I^nDIANA. 
 
 Thompson and Others v. The Governor, in Error. 
 
 that B. afterwards removed from Connecticut to Indiana, 
 purchased land here witli the money of A.'s heirs re- 
 ceived as aforesaid, took the title in his own name, and 
 died without accounting to them, or leaving personal 
 property sufficient to pay their claim. The bill prayed 
 for a discovery, relief, &c. 
 
 Held^ that a demurrer to the bill, on the ground of the 
 complainant's remedy being at law, could not be sus- 
 tained ; the case being within the jurisdiction of a Court 
 of chancery. 
 
 Thompson and Others v. The Governor, in Error. 
 
 Joint Parties — Eelease of One. 
 
 IF a suit be brought on a collector's bond against the 
 principal and sureties, it is error to take judgment 
 [*143] against the *sureties alone, without a suggestion 
 on the record of the sheriffs return to the writ of 
 " non est inventus" as to the principal. R. C. 1824, p. 
 290 ; Morris v. Knight, 1 Blackf. 106 ; Colman v. Graeter, 
 id. 388. See 1 Saund. p. 207, n.' 2, p. 291, n. 4 (1). 
 
 (1) King V. Anthony, ante, p. 131, R. C. 1831, p. 400. 
 
 Blackwell v. The Board of Justices of Lawrence County. 
 
 County— Public Corporation— Power to Contract.— A statute author- 
 ized the re-location of the seat of justice in a county, and gave to the 
 owners of lots in the old town, after the re-!ocation. on their coniplvin? 
 with certain conditions, a right to a conveyance by the county agent of 
 certain lots in the new town in exchange for theirs in the old one. The 
 county accepted the statute, and the seat of justice wa.s removed. TTeW, 
 that the owner of a lot in the old town, having performed the precedent 
 conditions prescribed by the statute, and demanded of the county agent 
 a conveyance for the proper lot in the new town, might, if the title were 
 refused, maintain an action of assumpsit against the Board of Justices 
 for a breach of their contract, implied from the county's acceptance of 
 the statute [n). 
 
 (a) 4 Blkf. 208. 
 
 (106)
 
 MAY TERM, 1828. 143-144 
 
 Blackwell v. The Board of Justices of Lawrence County. 
 
 Same — Assumpsit.— /feW, also, that if the important facts, showing the 
 cause of action, were correctly set out, the declaration could not be ob- 
 jected to on general demurrer on account of its improper conclui^ion, that 
 the plaintiff ought to recover the value of the lot in the new town. 
 
 Same — Assumpsit — Consideration. — Held, also, that the value of the lot 
 in the old town, at a reasonable time before the passage of the statute for 
 the re-location, was the real consideration that passed from the plaintiff 
 for the lot in the new town ; which consideration, with interest from the 
 
 • time the lot in the old town was relinquished to the county, was, in this 
 case, the measure of damages. 
 
 Same — May be Sued. — The Board of Justices may be sued, in their cor- 
 porate capacity, for any legal demand against the county. 
 
 Same — Removal of County Seat. — A seat of justice may be removed by 
 statute, on such terms as the legislature deems reasonable ; and the 
 county, having accepted and acted on the statute, is bound to comply 
 with the terms imposed on it by the statute. 
 
 Pleading — Surplusage. — Whatever comes under a videlicet, if inconsist- 
 ent with the precedent matter, may be rejected as surplusage. 
 
 Damages — Breach of Covenant. — On a covenant to convey real estate, 
 as on a covenant of seisin, the measure of damages is, in the absence of 
 fraud, the purchase-money and interest (6). 
 
 Quaere, whether on the covenant of warranty, the value of the land at the 
 time of eviction, or the purchase-money with interest, is the measure of 
 damages. 
 
 ERROR to the Lawrence Circuit Court. — x4.ssumpsit by 
 Blackwell against The Board of Justices of Lawrence 
 county. General demurrer to the declaration, and judg- 
 ment for the defendant. 
 
 HoLMAN, J. — The first count in the declaration states, 
 that by a certain act of the general assembly of 
 '[*144] the state of Luliana, ^entitled an act appointing 
 commissioners to re-locate the seat of justice of 
 Lawrence county, approved the 9th of February, 1825, 
 certain commissioners were appointed to meet on the 
 second Monda}' in March, 1825, and re-locate said seat 
 •of justice with authority to procure a tract of land, on 
 which to lay off a town, &c. ; that the act provided that 
 the agent of the county should lay oft' a town on said 
 tract of land, similar, as nearly as might be, to the town 
 of Palestine, the former seat of justice, and with a cor- 
 
 (6) Post, 274; 7 Ind. 450; 20 Id. 87. 
 
 (167)
 
 144-145 SUPREME COURT OF IXDIA:N'A. 
 
 Blackwell v. The Board of Justices of Lawrence County. 
 
 responding number of lots; that any person, who had 
 purchased and paid for any lot or lots in the town of 
 Palestine, should have the privilege of exchanging the 
 same for lots correspondingly situated and numbered in 
 the new town, by tiling and acknowledging, before the 
 recorder of the county, an application for such exchange, 
 which should be entered of record by said recorder, and 
 have the effect of a release of all the rig-ht and title of the 
 applicant to the lot or lots in Palestine; and that it 
 should be the duty of the agent of the county, on being 
 presented with the recorder's certificate of the relinquish- 
 ment and application, to give the applicant a deed for 
 the lot or lots in the new town, which should correspond 
 in number with the lot or lots so relinquished; provided 
 the application for the exchange should be made within 
 twelve months after said re-location. And the plaintiff 
 avers, that the commissioners so appointed, did meet on 
 the second Monday in March, 1825, and did procure a 
 tract of land &c., and re-locate the seat of justice for said 
 county thereon; that the agent of the county did lay off 
 a town, &c., which is known by the name of Bedford, on 
 a plan, similar as nearly as might be to the plan of Pal- 
 estine, and with a corresponding number of lots; that the 
 plaintiff, having purchased and paid for fractional lots 
 numbered 35 and 36, and lot numbered 244, in the town 
 of Palestine, for the sum of 500 dollars, and being 
 thereof the lawful owner, did, within twelve months 
 after the said re-location, to wit, on the 18th of March,. 
 1826, apply for the exchange of said lots for others cor- 
 respondingly situated in the town of Bedford, bv filing 
 and acknowledging an application for said exchange be- 
 fore the recorder of said county, which application was 
 entered of record by said recorder, who certified that such 
 relinquishment was made, and that the plaintiff claimed 
 
 in lieu thereof lots corresjtondingly situated m 
 [*145] Bedford; that the plaintiff on the '-^Pth of June, 
 
 1826, presented the said certificate to the ao-entof 
 (168)
 
 MAY TERM, 1828. 146 
 
 Black well v. The Board of Justices of Lawrence County. 
 
 said county, and demanded of him a deed for said lots in 
 Bedford; and that said agent refused and still does refuse 
 to give any deed for those lots. The plaintiff in fact says 
 that the county of Lawrence has not, nor ever had, any 
 title to the said lots in the town of Bedford; that the 
 said agent could not, and can not, make any deed for the 
 same ; and that, by reason of the premises, the county of 
 Lawrence is indebted to him in the sum of 500 dollars, 
 and being so indebted, then and there undertook and 
 promised to pay him the same whenever thereto required. 
 
 The second count states, that whereas the county of 
 Lawrence was indebted to the plaintiff in the further sum 
 of 500 dollars, for so much money before that time had 
 and received of the said plaintiff, by the said county at 
 its request, for the use and benefit of the said plaintiff; 
 and being so indebted promised to pay, &c. 
 
 A third count in an amended declaration, states that 
 the said defendants, in consideration of the premises 
 aforesaid, then and there undertook and faithfully prom- 
 ised to pay the said plaintiff', so much money as the said 
 lots in the said town of Bedford were reasonably worth, 
 whenever they should be thereto required ; and that the 
 said lots in Bedford were worth 500 dollars. Breach, 
 non-payment. 
 
 Demurrer and judgment for the defendants. 
 
 The two first counts it is said are bad, because they rest 
 on a promise and undertaking by the county of Law- 
 rence ; when, it is contended, a county, eo nomine, has no 
 power to contract, and can not be charged in an action 
 at law. There is much weight in this objection; but as 
 it is not applicable to the tliird count, we deem its inves- 
 tigatiiMi unnecessary. 
 
 The third count charges that the defendants, the board 
 of justices of Lawrence county, in consideration of the 
 premises, promised to pay, &c. That the board of jus- 
 tices may be sued for any legal demand against the 
 county, is settled by tlie act of assembly by which the
 
 145-146 SUPREME COURT OF INDIAXA. 
 
 Blackwell v. The Board of Justices of Lawrence County. 
 
 board was organized. R. C. 1824, p. 86. It is necessary, 
 then, to inquire whether the plaintift' has made out such 
 a demand as can be etifored against the board of jus- 
 tices. That tliis is a case of assumpsit is no valid .objec- 
 tion. If there were any room to doubt, wIj ether, 
 [*146] on general ^principles, the board of justices, as a 
 corporation, are liable to an action of assumpsit, 
 that doubt is entirely removed by the act of assembly 
 organizing the board. That act provides, that in all 
 cases where any perso'n now has, or hereafter may have, 
 any claim of any name or nature against any county, suit 
 may be brought therefor, in any Court of law or equity, 
 against such board of justices in their corporate capacity, 
 and judgment and execution be had thereon as in other 
 cases. The words here used, as to the claims that may 
 be enforced against the board of justices, as the represent- 
 atives of the county, are comprehensive, and include all 
 such claims as can be sued for in actions of assumpsit 
 onl3\ No exception can, therefore, be taken to the form 
 of the action. 
 
 But the plaintiff's claim is certainly peculiar. It arises 
 under the conditions imposed by the legislature, in the 
 act authorizing the re-location of the seat of justice of 
 Lawrence county. The removal of a seat of justice is a 
 subject of legislative discretion ; and the legislature, in 
 the exercise of this discretion, may impose such terms on 
 the county as are deemed equitable: and, when the act 
 of assembly has been accepted and acted under, as in 
 this case, by the constituted authorities of the county, all 
 the conditions and provisions in the act are obligatory on 
 the county. The county of Lawrence, by accepting this 
 act of assembly, so far as it establishes the town of Bed- 
 ford as its seat of justice has, by its proper agents, agreed 
 by implication to. perform all the conditions consequent 
 upon that event'. Tliose conditions have, therefore, be- 
 '';ome as obligatory upon the county, as if they were the 
 
 (170)
 
 MAY TERM, 1828. 146-147 
 
 Blackwell v. The Board of Justices of Lawrence County. 
 
 express stipulations of its constituted authorities. They 
 form a valid contract on a valuable consideration. 
 
 Considering the proceedings under the act of assembly, 
 as amounting to an implied contract by the board of jus- 
 tices, as the corporate organs of the county, with the 
 plaintitf, that if he would, in a given time and specitied 
 manner, relinquish his lots in Palestine, they, through the 
 agent of the county, would make him a deed for the lots 
 similarly situated and numbered in Bedford, — there can 
 be no doubt but that the plaintiff, if he has complied with 
 the precedent conditions, is entitled to a deed for the lots 
 in Bedford; and that a refusal on the part of the county 
 
 agent to make him the deed, completes his right 
 [*147] of ^action against the defendants. Performance 
 
 of all these conditions is averred in the declara- 
 tion. It may be proper however to remark, that one pro- 
 vision in the act of assembly requires, that the applica- 
 tion for the exchange of lots should be within twelve 
 months of the re-location of the seat of justice. The 
 commissioners, it is said, met for the purpose of re-locat- 
 ing the seat of justice on the second Monday in March, 
 1825, and did re-locate, &c. The whole business would 
 seem to have been transacted on that day. And the plain- 
 tiff avers that he applied for the exchange of lots, within 
 twelve months of the re-location ; to wit, on the 18th of 
 March, 1826. The date of the application here given, is 
 more than twelve months after the meeting of the com- 
 missioners for the re-location. It is inconsistent with the 
 preceding averment, and being under a videlicet must be 
 rejected. So that taking the averments in the declara- 
 tion as admitted by the demurrer, and the plaintiff's right 
 of action is complete. 
 
 But, although the plaintiff has a cause of action, yet 
 he has mistaken the rule by which the amount of his 
 claim is to be estimated. The conclusion of the third 
 count is, that the defendants, m consideration of the prem- 
 ises, promised to pay the plaintitf so much money as the 
 
 (171)
 
 147-148 SUPEEME COURT OF INDIANA. 
 
 Black-well v. The Board of Justices of Lawrence County. 
 
 lots in the town of Bedford were worth; averring that 
 they were worth 500 dollars. As the promise of the de- 
 fendants arises by implication of law, they can not be 
 said to have promised anything but that to which the 
 plaintiff is entitled by law. Here arises a question of 
 some general importance: What is the measure of the 
 damages to which the plaintiff is entitled ? The question 
 has been frequently agitated, whether the vendor of real 
 estate, who can not make a title, or who makes a title 
 that afterwards proves defective, is bound to remunerate 
 the vendee with the value of the land, or with the pur- 
 chase-money and interest. 
 
 , Where a title is made that afterwards proves defective, 
 a distinction has been sometimes drawn, between the 
 measure of damages in covenants of warranty and in cov- 
 enants of seisin. In Massachusetts, Connecticut, and 
 Sonth Carolina, the measure of damages in covenants of 
 warranty, is the value of the land at the time of the evic- 
 tion, Go7'e V. Brazier, 3 Mass. R. 543 ; Horsford v. Wright^ 
 
 Kirby, 3 ; Liber v. Parsons, 1 Bay, 19 ; Guerard v. 
 [*148] Rivers, id. 265. In New York, Virginia, *Penn- 
 
 sylvania, and Kentucky, the measure of damages 
 in such cases, is the purchase-money and interest. Staats 
 V. Ten Eyck, 3 Caines, 111 ; Pitcher v. Livingston, 4 Johns. 
 R. 1; Lowther v. The Commonwealth, 1 H & M. 201 ; Nel- 
 son V. Matthews, 2 H. & M. 164 ; Bender v. Fromberger, 4 
 Dall. 436 ; Harland v. Eastland, Hard. 590; Cox v. Strode, 
 2 Bibb, 273 ; Cosby v. West, id. 568 ; Booker v. Bell, 3 Bibb, 
 173. The same doctrine is supported by the cases of Mor- 
 ris^v. Phelps, 5 Johns. R. 49; Caulkins v. Harris, 9 Johns. 
 R. 324 : Bennet v. Jenkins, 13 Johns. R. 50; Davis v. Hall, 
 2 Bibb, 590. But in covenants of seisin the decisions 
 have been uniform, that the purchase-money and interest 
 is the measure of damages. This rule is either directly 
 or indirectly recognized in all the foregoing cases. See, 
 also, the cases of Marston v. Hobbs, 2 Mass. R. 433 : Bick- 
 ford V. Page, id 455.' When there is a covenant to con- 
 
 (172)
 
 MAY TERM, 1828. 148-149 
 
 Blackwell v. The Board of Justices of Lawrence County. 
 
 vey, tiud an inability to perform, unless the inability 
 arises from fraud in the covenanter, the measure of dam- 
 ages is the same as in covenants of seisin. The reason 
 that runs through all the cases of covenants of seisin, ap 
 plies with full force to covenants to convey. See, also. 
 the cases of Rutledge v. Lawrence, 1 Marsh. 396; Rankin 
 V. Maxwell, 2 Marsh. 488, — and the above cases of Cox v. 
 Strode, and Daris v. Hall, — where this rule is expressly 
 recognized. We therefore consider it to be well settled, that 
 in a breach of contract to convey, the measure of dama- 
 ges is the consideration, or purchase-mone\', with interest. 
 Assuming the position, that the consideration given 
 for these lots in Bedford, with interest thereon, is the 
 measure of the plaintifl"'s damages we find another ques- 
 tion that is peculiar to this case, viz.. What was this con- 
 sideration? It was not, as the plaintiff's counsel sup- 
 poses, the original purchase-money of the lots in Pales- 
 tine. That money was not given for the lots in Bedford. 
 Besides, the value of the lots in Palestine may have un- 
 dergone a material change, between the time of the 
 original purchase, and the time when the exchange was 
 first contemplated. If the exchange had been made, as 
 in ordinary cases, the consideration would have been, the 
 value of the lots in Palestine at the time they were re- 
 linquished. But it does not seem equitable, in this case, to 
 fix on that as the time at which their value should be 
 
 estimated; inasmuch as the removal of the seat 
 [*149] *of justice may have occasioned a depreciation in 
 
 their value. Even the passage of the act of as- 
 sembly on that subject, must have had some effect in les- 
 sening their value. So that we are of opinion, that the 
 value of the plaintift''s lots in Palestine, at a reasonable 
 time prior to the passage of the act of assembly for the 
 re-location of the seat of justice, is the real consideration 
 that passed from the plaintiff, which, with interest thereon 
 from the time of the relinquishment, is the proper meas- 
 ure of damages in this case. 
 
 (173)
 
 149-150 SUPREME COUKT OF INDIANA. 
 
 Justice V. The Board of Justices of Vermillion Countv, 
 
 From tliis view of the subject, it is evident tliat the 
 piaintitF has mistaken the measure of damages to which 
 he is entitled. But this does not materially affect the 
 declaration. The important facts that show what the 
 plaintiffs demand really is, are correctly set forth. The 
 balance of the declaration is the conclusion of the law on 
 this statement of facts. It is all mere formality; and a 
 mistake in this matter of form can not be taken advant- 
 age of on a general demurrer. The demurrer to the de- 
 claration should have been overruled. 
 
 Per Curiam. — The judgment is reversed with costs. 
 Cause remanded, with directions to permit the demurrer 
 to be withdrawn, &c. 
 
 Naijlor and Dewey, for the plaintitf. 
 
 Nelson, for the defendants. 
 
 Justice v. The Board of Justices of Vermillion County. 
 
 Contract — Condition — Performance — Tender. — In an action on a con- 
 tract in which something is to be done by the plaintiff, on condition of 
 which the defendant undertakes to pay, the plaintiff in his declaration 
 must aver a performance or a readiness to perform on his part. But the 
 want of such an averment must be taken advantage of by demurrer; or, 
 if the judgment be by default, by motion in arrest (a). 
 
 Same — Order of Proof — Practice. — The plaintiff, in such an action, can 
 not be obliged to prove performance of his part of the contract, before he 
 has proved the existence of the contract itself. 
 
 APPEAL from the Vermillion Circuit Court. — This 
 was an action of assumpsit by Justice against The Board 
 of Justices of Vermillion county. Plea, the general issue. 
 Verdict and judgment for the defendants. 
 
 Scott, J. — The appellant, who was plaintiff be- 
 
 [*150] low, states in "^his declaration that tho board of 
 
 county commissioners, at their May session, made 
 
 (a) 41 Ind. 165 ; 57 Id. 393 ; 56 Id. 594 ; 24 Id. 377 ; 55 Id. 161 ; 55 Id. 
 475. 
 
 (174)
 
 .MAY TEJ(M, lc^2^. 150 
 
 Justice c. The Board of Justices of Vermillion County. 
 
 a plan of a temporary coiirt-honse for the said county, 
 and ao-reed with him that he should be the undertaker 
 of the building, on his entering into bond with surety for 
 the faithful performance of the contract, on or before the 
 first day of i!Tovember following; for which services he 
 was to receive of the said commissioners the sum of 345 
 dollars. He then goes on to state that, afterwards, 
 to wit, on the — day of May aforesaid, at the county 
 aforesaid, in consideration thereof, (alluding to the afore- 
 said agreement,) and that the said plaintiff, at the special 
 instance and request of the said commissioners, had then 
 and there undertaken and faithfully promised the said 
 commissioners to perform and fulfill the said agreement, 
 in all things on his part and behalf to be performed and 
 fulfilled, they the said commissioners undertook, and then 
 and there faithfully promised the said plaintiff, to per- 
 form and fulfill the said agreement in all things on their 
 part to be performed and fulfilled. He avers that he 
 built the house according to the plan prescribed, and 
 within the time specified; and assigns the breach, that 
 neither the board of commissioners, during their contin- 
 uance in office, nor the board of justices to whom were 
 transferred the powers and authority of the said commis- 
 sioners, have paid the said sum, &c. Plea, non-assump- 
 sit; and issue. The cause was tried by a jury; and there 
 was a verdict and judgment for the defendants. 
 
 We are informed, by a bill of exceptions, that the de- 
 fendants objected to the admission of any evidence, on 
 the part of the plaintiff, of the contract in the declara- 
 tion mentioned, until the plaintiff should prove that the 
 bond in the said contract mentioned had been given by 
 the plaintiff; or that the giving of the bond had been 
 either prevented or expressly waived by the defendants. 
 Whether the giving of the bond, mentioned in the decla- 
 ration, is any part of the contract declared on, or is only 
 set out as inducement, need not now be decided, ^or is 
 it necessary at present to inquire whether the giving of a 
 
 (175)
 
 150-151 SUPREME COURT OF INDIANA. 
 
 Townsend v. The State. 
 
 bond, where it is a part of the contract, is material to be 
 averred after the completion of the work, to secure which 
 was the sole object of the bond. Giving the defendants 
 all they claim, as it respects the importance of giviug 
 bond and the necessity of that fact being averred 
 [*151] in the declaration, neither the time nor *the man- 
 ner of taking advantage of the defect could avail 
 them in this case. Where the undertaking is founded on 
 a contract in which something is to be done by the plain- 
 tiff, on condition of which the defendant undertakes to 
 pay, it is necessary for the plaintiff" in his declaration to 
 aver a performance or a readiness to perform on his part. 
 But the Avant of such an averment in the declaration, 
 must be taken advantage of by demurrer ; or, if the judg- 
 ment be by default, by motion in arrest. 1 Esp. IST. P. 
 129. Collins v. Gibbs, 2 Burr. 899. Here was an issue in 
 fact for the jury to try. All the evidence ought to have 
 relation to the issue; and all evidence pertinent to the 
 issue ought to go to the jury. To require a party to 
 prove performance of a contract, before he can be per- 
 mitted to prove its existence, is, to say the least of it, a 
 novel proceeding. 
 
 There is another bill of exceptions in the record ; but 
 it states no opinion of the Court to which exception is 
 taken. For the reason already noticed the judgment 
 must be reversed. 
 
 Per Curiam. — The judgment is reversed, and the ver- 
 dict set aside, with costs. Cause remanded, &c. 
 
 Deicey, for the appellant. 
 
 Judah, for the appellees. 
 
 Townsend v. The State. 
 
 School Fund— Violations of Liquor Law. — The fine, on a conviction of 
 retailing spirituous liquors without a license, belongs to the county for the 
 purposes of education; but this circumstance need not be stated in the 
 judgment. 
 
 (176)
 
 MAY TERM, 1828. 151-152 
 
 Townsend v. The State. 
 
 Criminal Practice— Endorsement of Indictment. — A judgment against 
 a defendant, in a criminal cause, will not be reversed because the record 
 does not show that the indictment was endorsed, " a true bill," by the 
 foreman of the grand jury (a). 
 
 Liquor Law — Void License. — A license, to retail spirituous liquors for 
 three months, was granted by the board of county justices. The license, 
 as appeared on its face, had been granted on the payment of Ji/tt/ cents. 
 Held, that, under the statute, no license to keep a tavern or to retail spir- 
 ituous liquors, could be granted on the payment of a less sum than five 
 dollars; and that, therefore, the license in this case was, jmma facie, abso- 
 lutely void. 
 
 Jury — Province of.— The jury are the judges of the facts, both in civil and 
 
 criminal cases; but they are not in either, the judges of the law. They 
 
 are bound to find the law as it is propounded to them by the Court. 
 
 [*152J They may, indeed, find a general verdict, including both *the law 
 and the facts ; but if, in such verdict, they find the law contrary to 
 the instructions of the Court, they thereby violate their oath (6). 
 
 Evidence — Competency — Question for the Court. — Whether evidence 
 be competent or not, is always a question for the decision of the Court. 
 
 ERROR to the Morgan Circuit Court. 
 
 HoLMAN, J. — Indictment for retailing spirituous liquors 
 without license. Plea, not guilty. On the trial, the de- 
 fendant presented the following license, to wit : " State 
 of Indiana, Morgan count}', January term, 1827. Ordered 
 by the board of county justices, that Silas Townsend be 
 and he is hereby authorized to retail spirituous liquors, in 
 Morgan county, for three months from the lirst day of 
 January, 1827; the said Silas Townsend having paid the 
 sum of fifty cents to the treasurer for the said term. Wit- 
 ness, George H. Buler, elk." Which license, it is said, 
 covered the time when the retailing of the spirituous 
 liquors, charged in the indictment, was proved to have 
 taken place. The counsel for the state objected to the 
 admission of his license as evidence to the jury, and the 
 Circuit Court sustained the objection and rejected the li- 
 cense; to which opinion of the Court the defendant ex- 
 cepted. The defendant moved the Court to instruct the 
 jury, that they were the judges of the law and the fact 
 
 (a) 25 Ind. 415. (6) Overruled. 4 Blkf. 150 ; 10 Ind. 502-536. 
 YOL. II.— 12 (177)
 
 152-153 SUPKEME COURT OF INDIANA. 
 
 Townsend c. The State. 
 
 in this ease, and that the power of Courts in criminal 
 cases is only advisory ; which instructions the Court re- 
 fused to give; but instructed the jury that it was their 
 province, in criminal cases, to determine whether the facts, 
 proved by the evidence, constitute an ofience under the 
 law, as it is propounded to them by the Court. The jury 
 found the defendant guilty, and assessed his fine at two 
 dollars; and the Court gave judgment, that the state of 
 Indiana recover against the said defendant the sum of 
 two dollars, by the jurors assessed, together w^ith her 
 costs. 
 
 It is here contended, that this judgment is erroneous 
 because it does not state that the fine is for the use of the 
 county seminary of Morgan county. That this fine when 
 collected belongs to the county for the purposes of educa- 
 tion, is not disputed ; but the question is, whether it is 
 niaterial that this appropriation of it should appear in 
 l^e judgment. The appropriation may or may not ap- 
 pear in the judgraent,without affecting the right of 
 [*153] the county ; and, in the present form of the *judg- 
 ment, the right of the county is complete, without 
 any additional appropriation. 
 
 Another point that presents but little difficulty may 
 here be disposed of; that is, that this judgment is erro- 
 neous, because the record does not show that the indict- 
 ment was endorsed, " a true bill," by the foreman of the 
 grand jury. Had this objection been made in the Circuit 
 Court, so that we should have known that the indictment 
 had not this necessary endorsement, it would have become 
 a material point in the case ; but, presented as it is for 
 the first time in this Court, it loses its importance, inas- 
 much as a complete record, conclusive as to every.material 
 fact in the case, may be made up without it. 
 
 A question of some importance and diflaculty is pre- 
 sented by the refusal of the Circuit Court to admit the 
 defendant's license to be read as evidence to the jury. 
 The act to license and regulate taverns, approved the 20th 
 
 ^ (178)
 
 MAY TKRM, 1828. 153-154 
 
 Townsend t. The Slate. 
 
 of January, 1824, R. C. 1824, p. 406, provides, in the lirst 
 section, that the county commissioners (whose powers the 
 board of county justices now possesses,) are authorized 
 to license, as retailers of spirituous liquors, any persons 
 who apply therefor: but shall not grant such license, un- 
 less the person applying shall produce the certiticate of 
 twelve householders that he is of good moral character, 
 and that it would be for the benefit of travelers if he was 
 so licensed; nor unless he shall give bond to keep good 
 order in his house. The second section requires, that the 
 person so licensed shall constantly keep the bedding, 
 stabling, and other accommodations, necessary for the 
 convenience of travelers. In the third section it is enacted, 
 that no person shall obtain license, as a retailer of spirit- 
 uous liquors, until he shall pay to the county treasurer 
 the amount required by law for such license; nor shall 
 any license continue for more than one year. By an 
 amendatory act, approved the 12th of February, 1825, it 
 is enacted, that when any person shall make application, 
 under the provisions of the act to which this is an amend- 
 ment, for a license to keep a tavern, he shall produce a 
 certificate of twenty-four householders, &c. The act then 
 proceeds to make some further additional regulations, as 
 to the house, stable, bedding, &c., that he shall possess. 
 Stat. 1825, p. 99. The act respecting the revenue, ap- 
 proved the 30th of January, 1824, R. C. 1824, p. 
 [*154] 339, provides, that the amount required for a *li- 
 cense, to retail spirituous liquors, shall not be less 
 than five, nor more than twenty-five dollars. It was un- 
 der these acts of assembly that this license was granted. 
 From the whole phraseology of these two acts regulat- 
 ing taverns, it would seem that the legislature considered 
 that a license to retail spirituous liquors, and a license to 
 keep a tavern, mean the same thing. Without this con- 
 struction of their language, there would be some confu- 
 sion on the subject; but with this construction the whole- 
 subject is plain. The same pre-requisites are required of 
 
 (179)
 
 154-155 SLTPEEME COURT OF IXDIAXA. 
 
 Townsend r. The State. 
 
 him who would obtain a license to retail spirituous liquors, 
 as of him who would obtain a license to keep a tavern; 
 and a license to retail spirituous liquors, is a license to 
 keep a tavern, and so vice versa; and it must be in this 
 light that, we consider, the license to retail spirituous 
 liquors was presented as a defence in this case. When 
 we consider the nature of the act for which this license is 
 required, we shall tind it necessary to give the legislative 
 provisions on the subject a strict construction. It has 
 long been seen, that the practice of retailing spirituous 
 liquors is productive of serious evils to the community ; 
 it has therefore long been a subject of legislative interfer- 
 ence. The general assembly has, from time to time, 
 adopted measures to repress this growing evil, and to con- 
 fine it in as narrow bounds as seemed to be consistent 
 with the real or imaginary rights of individuals. There- 
 fore, every pre-requisite for the granting of a license for 
 this purpose should be strictly and rigidly required. If 
 w^e consider such a license in regard to the eft'ect it has 
 upon the accommodation of travelers, we shall find rea- 
 sons for the same strictness of construction. One of the 
 pre-requisites to the granting of such a license, to wit, the 
 payment of the sum required by law, has another reason 
 why it should be strictly construed, because it is in aid of 
 the public revenue of the county. 
 
 What, then, is the effect of a license granted without 
 these pre-requisites? How is it to be known, whether 
 these pre-requisites have been complied with or not? 
 What tribunal has authority to inquire into the proceed- 
 ings of the board of justices on this subject ? These ques- 
 tions are of importance; but they are in some measure 
 solved, by considering that the justices acted minis- 
 terially, and not judicially in this matter. The 
 £*155] *only questions that can arise, are on plain mat- 
 ters of fact relative to the performance of the 
 pre-requisites. Whosoever performs the pre-requisites is 
 entitled to the license; and there is no case where the 
 
 (180)
 
 MAY TERM, 1828. 155 
 
 Townsend v. The State. 
 
 pre-requisites, or any of them, can be dispensed with. 
 There is no room for discretion, except in the amount at 
 which the license shall be granted, and then the range of 
 discretion is only between five, and twenty-five dollars. 
 If the act of granting a license is in its nature a ministe- 
 rial act, every tribunal, and every individual who is 
 aftected by it, may examine into the grounds on which 
 it has been granted ; and if it is found that it was granted 
 contrary to law, it may be treated as absolutely void. If 
 it were otherwise, it would place the justices, in this mat- 
 ter, superior to the law; and the acts of assembly to them^ 
 would only be directory, and could not be rendered im- 
 perative, as there is no appeal from their order. There 
 is no ground on which to consider this act of theirs as 
 only voidable, and therefore good until it is set aside, aa 
 there is no provision made for reviewing it. It must, 
 therefore, be absolutely void, or unquestionably valid ; 
 and surely the legislature never intended to sanction the 
 idea, that justices might do just as they pleased in grant- 
 ing tavern licenses; and that no one should question the 
 validity of their acts. It is a general rule in England to 
 admit a person to show that he is not within the scope 
 of the bankrupt laws, although the authorized commis- 
 sioners have declared him a bankrupt. 1 Stark. Ev. 253. 
 In Crepps v. Burden, Cowp. 640, it was held to be a 
 sufficient answer, in an action of trespass, to a conviction 
 for carrying on a trade, that the justices had no juris- 
 diction. The same rule holds as to an order of removal 
 by the justices. 1 Stark. Ev. 253. We, therefore, unhes- 
 itatingly decide, that a license granted without the stat- 
 utory pre-requisites is absolutely void; and that any tri- 
 bunal that has to act upon it, may declare it so. 
 
 It is unnecessary to inquire how it is to be known, 
 whether these pre-requisites have been complied with or 
 not; for in this case the. license shows on its face, at least 
 presents strong unrebutted evidence of the fact, that it was 
 granted without the payment of the sum required by law. 
 
 (181)
 
 155-156 SUPREME COURT OF IXi)IANA. 
 
 Townsend v. The State. 
 
 It is granted for the sum of fifty cents, when live dollars 
 is the lowest sum for such a license. This license, 
 [*156] it is true, is for but three months ; but *the rev- 
 enue law has made no division of time, in fixing 
 the amount to be paid for such a license. It can not be 
 granted for more than one year, but there is nothing to 
 proliibit the granting of it for a shorter time ; but the 
 law is imperative, without any regard to time, that it 
 shall not be granted for a less sum than five dollars. If, 
 in this case, the holder of the license actually paid the 
 full amount required by law^, it lay upon him to show it, 
 as the license presented by him was, at least, prima facie 
 evidence to the contrary. In granting this license for 
 the sum of fifty cents, the board of justices have under- 
 taken to exercise their discretion, where no discretionary 
 powers were given by the legislature ; the license was 
 therefore granted without authority. The defendant him- 
 self has shown that he was not entitled to it; and he can 
 not screen himself from the penalty of the law, under a 
 license which, he must be presumed to have known, was 
 granted to him in violation of the law. This license be- 
 ing out of the pale of the law is of no more force than 
 if granted by a private individual. It was therefore 
 within the province of the Circuit Court, on inspec- 
 tion, to know, and determine, that it was granted 
 without authority, and constituted no defence to the in- 
 dictment. That Court properly excluded it from the j nry. 
 The direction of the Circuit Court to the jury, that it 
 was not the province of the jury to determine the law% is 
 assigned for error with some degree of confidence. As 
 this presents a question that has been frequently agitated 
 in this state, we have devoted considerable time to its ex- 
 amination. It would seem that the counsel who moved 
 for this direction of the Court, supposed that the jury 
 possessed more extensive powers in criminal than in civil 
 cases, and therefore treat this as a criminal case, in order 
 to secure to the defendant the full extent of a discretion- 
 
 (182)
 
 MAY TERM, 1828. 156-157 
 
 Townsencl v. The State. 
 
 ary power in the jury. Although misdemeanors of this 
 kind are sometimes, in general terms, classed among crim- 
 inal cases, yet, in every material feature, they are more 
 nearly assimilated to civil cases than to criminal; but we 
 have been able to find no material distinction between 
 civil and criminal cases, as it regards the province of the 
 jury. The powers and the duties of juries are the same, 
 except where, under peculiar circumstances, their powers 
 
 are enlarged and extended. It has been frequent- 
 [*157] ly contended, that the jury have a right to *deter- 
 
 mine the law as well as the fact ; but we have 
 never met with a single principle of law that supports 
 the position; nor a single decided case of any respecta- 
 bihty that sanctions such a principle. In this case the 
 10th sec. of the 1st art. of the constitution, is urged as 
 supporting the position. That section provides, that in 
 indictments for libels, the jury shall have a right to de- 
 termine the law and the facts, under the direction of the 
 Court, as in other cases. This provision in the constitu- 
 tion seems utterly to defeat the purposes for which it was 
 introduced; and to present a conclusive argument against 
 the existence of a general right in the jury to determine 
 the law in all cases. Admitting that it gives the right 
 contended for, in the case of libels, does it give that right 
 in any other cases? And if that right previously existed 
 in all cases, why make this provision in the case of libels? 
 The adoption of this provision, by the framers of the 
 constitution, is therefore the expression of an opinion 
 that no such general right existed ; and the adoption of 
 it in cases of libels only is conclusive that they did not 
 intend to extend it to any other cases. The expression 
 of the one excludes the others. So that, if this question 
 depended solely upon this part of the constitution, it 
 would be decisive against the general right of juries to 
 determine questions of law. Previously to the formation 
 of our constitution, there had been a violent struggle in 
 England, between the subjects and the crown, on the doc- 
 
 (183)
 
 157^158 SUPEEME COUET OF INDIANA. 
 
 Townsend v. The State. 
 
 trine of libels; in which the oppressive power of the 
 crown, enforced by the Courts of justice, rendered it a 
 matter of high importance, that in state prosecutions for 
 libels, the jury should determine the law as well as the 
 facts. This was seen and known by the framers of our 
 constitution, and this provision may have been made to 
 prevent the occurrence of such a state of things in this 
 state. But it was not thought necessary to extend this 
 right of juries to any other cases. So that all other cases 
 are left as they were before. We shall therefore examine 
 into the general province of juries, as to questions of law, 
 leaving tiie case of libels where they are placed by the 
 constitution. 
 
 The maxim, ad qucestionem juris non respondent juratoreSy. 
 seems to be as old as the common law. See Co. Litt. 155, 
 15(3. — Foster's Crown Law, 255, 256. It had the same 
 
 origin with the maxim, ad qucestionem facti non re- 
 [*158] spondent judices. These *two maxims divide and 
 
 designate the powers of Courts and juries. Ta 
 Courts are assigned all questions of law; to juries all 
 questions of fact. This distinction in the powers of the 
 tw.o tribunals, runs through all the books and cases on 
 the subject. In no case can the Court decide upon an 
 issue in fact, unless by express statutory provision ; nor 
 can the jury in any case determine an issue of law. The 
 Court must take the facts to be, as found by the jury; 
 and the jury must yield to the law as delivered by the 
 Court. It is true, that the Court has the power to set 
 aside a verdict found contrary to the facts established by 
 the evidence, but it can not determine the facts to be dif- 
 ferent, but must submit the case to another jury ; and the 
 jury, if they are unwilling to sanction the law as deliv- 
 ered by the Court, may find the facts specially, and leave 
 to the Court the responsibility of determining the law. 
 This distinction, between the province of the Court and 
 of the jury, runs through the whole system of our juris- 
 prudence. "When an issue in law is formed, the jury 
 
 (184)
 
 MAY TERM, 1828. 158-159 
 
 Townsend v. The State. 
 
 have nothing to do with it. When any matter of law is 
 pleaded, it concludes to the Court, and not to the country 
 or jury. Whenever the facts in a case are admitted, a 
 jury is unnecessary ; unless it is to find the consequences 
 of the facts, as in cases of damages, which depend almost 
 exclusively upon facts. Juries are generally sworn to try 
 issues, or inquire of damages ; and their oaths require 
 them to give their verdict according to evidence ; and as 
 evidence proper for a jury, applies exclusively to facts, 
 and never applies to the 'law, the oaths of the jurors ne- 
 cessarily limit them to the finding of facts. 
 
 If juries were authorized to determine matters of law, 
 their rules of decision, and consequently the rights of in- 
 dividuals, would necessarily be uncertain and fluctuating. 
 They neither have, nor are presumed to have, a compe- 
 tent knowledge to decide according to any settled princi- 
 ples ; and being so frequently succeeded by each other, it 
 would be impossible, in any future time, to establish any 
 permanent rules of decision. If the Court decide con- 
 trary to laAv, the decision may be corrected in an appel- 
 late tribunal, and no matter how often an erroneous deci- 
 sion may be made in the same case, it can be as often set 
 right by a reversal of the judgment. If the jury may 
 
 decide the law, the Court, it is true, may set aside 
 [^159] the verdict ; but as ^only two new trials can be 
 
 granted to the same party, if three successive 
 juries concur in an erroneous verdict, the evil is without 
 a remedy. The most important controversies might thus 
 be determined, contrary to the plainest principles of law, 
 without a possibility of redress. Thus the rights of in- 
 dividuals might be destroyed by the decision of men who 
 were never presumed to know th^ law; and that, too, in 
 the presence of a competent tribunal, fully aware of the 
 injustice that was done, but without the power to prevent 
 it. If the jury have a right to find a verdict contrar}' to 
 the direction of the Court, it would not only render the 
 rules of decision uncertain, and the rights of individuals 
 
 (185)
 
 159-160 SUPREME COURT OF INDIANA. 
 
 Townsend v. The State. 
 
 precarious, but it would also prostrate the dignity of the 
 Court; and would ultimately eflect a material change, if 
 not the destruction of tliis branch of the government. 
 But the organization of our Courts, the system of plead- 
 ing, and the rules of admitting evidence, all go to show 
 that the jury do not possess this right. 
 
 The misapprehension of the province of the jury, as to 
 questions of law, has principally arisen from the fact that 
 they may find a general verdict; which involves the law 
 with the facts ; and, in finding such a verdict, they may 
 decide the law to be different from what the Court has 
 determined it to be. This they can do, but it is classed 
 by all writers on the subject among their powers of doing 
 wrong. It is a violation of their oaths; and surely the 
 question is not, how illegally a jury may act, but what is 
 the proper sphere of their action. It is the duty of the 
 Court to determine the law, and the presumption is that 
 it determines it correctly; if the jury have a right to find 
 the law to be otherwise, it would necessarily follow, that 
 they have a right to determine the law to be what it is 
 not. Besides, if the jury find the law contrary to the 
 direction of the Court, the Court is bound to set aside the 
 verdict; and it would seem strange, that the jury have a 
 right to do what the Court is bound to undo. The duty 
 of the Court is altogether different in this case, from the 
 case of a verdict conti'ary to evidence. There the Court 
 exercises a discretion in setting aside a verdict, but here 
 its duty to set aside the verdict is imperative. The limi- 
 tation of the power of the Court as to granting new trials, 
 after two verdicts for the same party in a civil case, or 
 after a verdict for the defendant in a criminal 
 [*^160] case, has nothing to do *with the general prin- 
 ciple. This limitation was made, in the one case, 
 to put an end to litigation: and, in the other, in favor of 
 life and liberty; and was not intended to enlaro^e the 
 province of juries. The privilege granted to juries of 
 finding a general verdict, can not be construed into an 
 
 (18G)'
 
 MAY TERM, 1828. 160 
 
 Townsend v. The State. 
 
 authority to find the law contraiy to the direction of the 
 Court. This clearly appears from what is said of their 
 liability to punishment, if they find a verdict contrary to 
 law. Sir William Blackstone, in treating of the duties 
 of juries in giving their verdict in criminal cases, which, 
 he observes, may be either general or special, says, " they 
 may set forth the facts of the case, and pray the judg- 
 ment of the Court as to the law, where they doubt the 
 matter of law, and therefore choose to leave it to the 
 determination of the Court; though they have an unques- 
 tionable right of determining upon all the circumstances, 
 and finding a general verdict, if they think proper so to 
 hazard a breach of their oaths: and if their verdict be 
 notoriously wrong, they may be punished, and the ver- 
 dict set aside by attaint." 4 Bl. Comm. 361. Thus it 
 appears to us to be clear, that although the jury has an 
 unquestionable right to find a general verdict, and in that 
 verdict they may, if they choose to violate their oaths, 
 find contrary to law, or contrary to the direction of the 
 Court, yet in so doing they have passed the proper bound- 
 ary of their duty. This subject was thus viewed by 
 Judge Addison. In his charges to grand juries at the 
 close of his Reports, page 62, he remarks, that strictly 
 and properly it belongs only to Courts to decide all ques- 
 tions of law; but whenever in au}^ issue, the law is in- 
 volved in the fact, the jury may decide both by a general 
 verdict, but the doctrine of attaints, and of new trials, 
 proves that they do this at their peril, and under the 
 control of the Court. 
 
 It is laid down by Hawkins, that if it shall plainly ap- 
 pear that the jury are perfectly satisfied of the truth of a 
 fact, and the Court directly tells them, upon the fact so 
 found, the judgment of the law is such, or such, and 
 therefore they ought to give their verdict accordingl}', 
 yet they obstinately insist upon a verdict contrary to such 
 directions; it seems agreeable to the general reason of 
 the law, that the jurors are finable by the Court, unless 
 
 (187)
 
 160-161 SUPREME COURT OF INDIANA. 
 
 Townsend v. The State. 
 
 an attaint lies against them; for otherwise they would 
 not be punishable for so palpable a partiality, in 
 [*161] taking *upon them to judge of matters of law, 
 with which they have nothing to do, and of 
 which they are presumed to be ignorant, contrary to the 
 express direction of one who by the law is appointed to 
 direct them in such maUers, and is to be presumed of 
 ability to do it. 2 Hawks. P. C. 148 ; 3 Bac. Abr. 783, 
 784, 785. Lord Hale, although he contends against the 
 doctrine of fining jurors for giving a verdict against the 
 direction of the Court, except in the King's Bench, yet 
 clearly maintains our position, that juries have nothing 
 to do with matters of law, and are not authorized in find- 
 ing the law contrary to the direction of the Court. 2 
 Hale's P. C. 160, 161, 311, 313. The cases of Pennsylvama 
 V. Bell, Addison, 156, and Pennsylvania v. 31' Fall, id. 255, 
 support the same doctrine. These were both capital 
 cases, and the juries were expressly charged, that it was 
 their province to find the facts only, and that they had 
 nothing to do with questions of law, which were to be 
 determined by the Court. In the first of these cases, the 
 language of Judge Addison is peculiarly strong. " The 
 laws," says he, " must operate by certain rules, not the 
 casual feelings of jurors; and jurors must judge of the 
 facts according to certain rules of law; for miserable 
 would be our situation, if our lives depended not on fixed 
 rules, but on the feelings which might happen to be ex- 
 cited in the jurors who were to try us. I therefore know 
 of no argument less proper, or more dangerous, or to 
 which juries ought to listen with greater suspicion and 
 aversion, than that which must derive its force from con- 
 founding the authority of a Conrt and a jury; instilling 
 into the one a prejudice against the opinion of the other; 
 and persuading jurors that they are at liberty to apply 
 to facts a rule of their own, difterent from that which 
 the law applies. The Court is the montli of tlie law. 
 Whether the facts are so, or so, it lies with yoii to deter- 
 
 (188)
 
 MAY TEKM, 1828. ' 161-162 
 
 Townsend v. The State. 
 
 mine, according as you believe the testimony; leaving it 
 to the Court to pronounce the construction, which the 
 law puts on the facts so found; but you can not, but at 
 the peril of a violation of duty, believing the facts, say 
 that they are not what the law declares them to be; for 
 this would be taking upon you to make the law, which 
 is the province of the legislature, or to construe the law, 
 which is the province of the Court." Judge Addison has 
 also in his charges to grand juries, pp. 53 to 63, entered 
 at full length upon the constitutional authority 
 [*162] of Courts and juries, and has shown by a *train 
 of arguments, not only that juries are limited to 
 matters of fact, but also that it is important to the per- 
 manency of our civil institutions, that this limitation 
 should be strictly observed. 
 
 Thus, from all that we have seen or heard on this ques- 
 tion, we are prepared to say without hesitation, that the 
 instruction of the Circuit Court was correct. 
 
 But, before we dismiss this case, we will notice another 
 feature in it that is not unworthy of attention, as it is 
 predicated on a supposed right in the jury to determine 
 other questions of law, besides those involved in the facts 
 put in issue. The defendant was indicted for retailing 
 spirituous liquors without hcense. It seems, by a bill of 
 exceptions, to be admitted that the fact of retailing spir- 
 ituous liquors was proved; but he presented a license in 
 his defence, which was rejected by the Court. Kow the 
 only question of law that conjecture can raise, which the 
 defendant required to be submitted to the jury, must have 
 been whether this license, so rejected by the Court, was 
 legal evidence and formed a justification for the defend- 
 ant. If this supposition is correct, and from all that we 
 can discover from the record we have no doubt but that 
 it is, the defendant requests the acknowledgment of a 
 right in the jury, which we presume has never before been 
 contended for: a right to determine, not only the law in- 
 volved in the facts submitted to them, but to determine 
 
 (189)
 
 162-163 SUPREME COURT OF INDIANA. 
 
 ToAvnsend v. The Slate. 
 
 questions of law as to the competency and admissibility 
 of evidence, which have been expressl}' excluded from 
 their consideration, by the decision of the Court. If ju- 
 ries were recognized as possessing such a right as this, it 
 would immediately prostrate the power of the Court, and 
 overturn every legal method of arriving at facts, besides 
 destroying the permanency of the principles of law in- 
 volved in the facts. We can not but think that a calm 
 consideration of the consequences of such a course of pro- 
 ceeding, would so alarm its most strenuous advocates, as 
 to induce them to abandon it. 
 
 Blackford, J. — I can not agree to a part of the opinion 
 of the Court which has just been delivered. I object to 
 that part of it which states, that the jury have not a right, 
 if they please, to determine the law, as well as the facts 
 proved ; and also to that part of it which considers, 
 that, if the jury find a verdict contrary to the instructions 
 of the Court, as to the law applicable to the evidence 
 submitted to them, they thereby violate their 
 [*163] oath. *I conceive that the acknowledged right 
 of the jury to find a general verdict, necessarily 
 includes their right of deciding, if they choose, both the 
 law and the facts with which the cause is connected ; and 
 that although the opinion of the Court, on the questions 
 of law applicable to the facts proved, is entitled to great 
 deference and respect from the jury, it is not absolutely 
 compulsory upon them. I entirely agree with my breth- 
 ren that it is the right and the duty of the Court to grant 
 a new trial, if the verdict be contrary to law; and that 
 the Court has the exclusive right to decide on the com- 
 petency of evidence. 
 
 Per Curiam. — The j udgment is aflirmed with costs. To 
 be certified, &c. 
 
 Wick, for the plaintiff. 
 Whitcomb, for the state 
 
 (190)
 
 MAY TERM, 1828. 163-164 
 
 Levellin<^ v. Leavell and Others. 
 
 Levelling v. Leavell and Others. 
 
 Trespass — Justification — Defence. — It is sufficient for a plea of justifi- 
 cation in trespass, to justify that which is the gist of the action : matters 
 merely in aggravation need not be answered. 
 
 Military Law — Militia Fines — Execution. — An alia.s or pluries list of 
 militia fines may be issued by the judge advocate against the delinquents, 
 whether they be persons conscientiously scrupulous of bearing arms or 
 not ; and it is not necessary for such list to be, like an execution, in the 
 name of the state. 
 
 Trespass — Justifi<:;ation — Pleading — Venue. — A plea of justification in 
 trespass, can not be objected to for the want of a venue ; the place being 
 laid in the declaration, and the trespass justified being alleged to be the 
 same with that complained of. 
 
 Arrest — Justification — Pleading. — If A. and B. justify in trespass, as 
 sheriff and deputy sheriff, under an alias list of militia fines issued by a 
 judge advocate, the plea must show which of the defendants is the sher- 
 iff and which the deputy. 
 
 APPEAL from the Heiny Circuit Court. 
 
 Blackford, J, — This wa« au action of t-respass. The 
 declaration contains two counts. The first for breaking 
 and entering the plaintiff's close, situate in the county of 
 Henry, and taking away his mare, and converting her to 
 his own use. The second, for breaking and entering the 
 plaintiff's dwelling house, situate in the county of Henry, 
 and breaking his clock. 
 
 Two of the defendants, Leavell and Forkner, pleaded 
 in justification, that the plaintiff, conscientiously scrupu- 
 lous of bearing arms, was, on, &c., at, &c., by a Court of 
 assessment, adjudged to pay two dollars and a 
 [*164] half as an equivalent for not ^performing militia 
 duty in the year 1825; that, on, &c., at, &c., the 
 judge advocate laid before the Court of appeals the as- 
 sessment against the plaintiff, which was not remitted ; 
 that, on, &c., the judge advocate made out a list of the 
 fine against the plaintiff, which list was signed and sealed 
 by the senior officer of the Court of appeals, and deliv- 
 ered to the sherift' of said county of Henry, where the 
 
 (191)
 
 164 SUPREME COURT OF INDIA:N'A. 
 
 Levelling v. Leavell and Others. 
 
 plaintitf resided, who, on, &c., returned the list to the 
 paymaster, with an endorsement that the same had not 
 been collected; that the judge advocate, on being notified 
 by the paymaster of this return, made out an alias list of 
 the fine, and then and there, to wit, on, &c., delivered the 
 same to these defendants, sheriff and deputy sheriff of 
 the said county of Henry, to be collected; that before 
 this alias list was returnable, the defendants, with the 
 said list, entered the dwelling house of the plaintitf, the 
 door being open, to levy the amount, using no unneces- 
 sary force ; that not finding goods there on which to levy, 
 they entered the plaintift''s close, and then and there, with 
 the said list, levied on the mare to satisfy the fine and 
 costs, and took her into possession, using no unnecessary 
 force ; that by virtue of said list, on, &c., at, &c., and be- 
 fore the same was returnable, the defendants sold the 
 mare, after due notice, at public vendue, for the purpose 
 aforesaid, the proceeds of which, the fine and costs being 
 deducted, the plaintiff refused to accept, and the defend- 
 ants paid the same into the treasury of the- said county 
 of Henry; and that the trespasses justified are the same 
 with those complained of. 
 
 The other defendant, Boggs, besides the general issue, 
 pleaded a justification similar to that of his co-defend- 
 ants, with the exception that he states his having acted 
 not as an ofiicer, but in aid of Leavell, the sherift", and in 
 obedience to his command. 
 
 To the plea of Leavell and Forkner, the plaintift" de- 
 murred specially for the following causes: 1st, the plea 
 does not answer the trespass charged as to the house and 
 clock; 2d, the plea sliows that the fine was against the 
 plaintiff, as one conscicntiouslj' scrupulous of bearing 
 arms; and that the alias list was not signed, sealed, and 
 delivered, by the senior officer of the Court of appeals, 
 without which it was void; 3(1, the .plea shows that the 
 property was taken on an alias list of fines, which could 
 not issue in this case; 4th, it does not appear that the 
 
 (192)
 
 MAY TERM, 1828. 164-165 
 
 Levelling i'. Leavell and Others. 
 
 process was in the name of the state ; 5th, it does 
 [*165] *not appear that the levy was made in the count}-, 
 or whilst the defendants were the sheriff and 
 deputy; 6th, it does not appear which of the defendants 
 justifies as sheriff, and which as deputy. The plaintiff' 
 also demurred specially to the plea of Boggs, and assigned 
 for cause, the first four objections taken to the other plea. 
 All the defendants joined in demurrer, and the Circuit 
 Court ffave iudgment in their favor. 
 
 There is nothing in the first objection. Entering into 
 the dwelling house, breaking the close, and taking the 
 plaintiff's mare, constitute the gist of the trespass alleged ; 
 and these, the defendants undertake to justify: breaking 
 the clock is merely a matter of aggravation, and need not 
 be answered by the plea. Taylor v. Cole, 3 T. R. 292. 
 
 The second objection is also untenable. The words of 
 the militia law of 1824, section 47, are express, that if the 
 money be not made on the first list, the judge advocate, 
 on being notified thereof by the paymaster, shall issue an 
 alias or pluries list of the uncollected fines. The law re- 
 quires the first list to be signed and sealed by the senior 
 oflUcer; but, in so many words, authorizes the judge ad- 
 vocate himself to issue the subsequent ones. 
 
 As to the third objection, we are clearly of opinion, 
 that the provision in the section of the militia law re- 
 ferred to, which requires the judge advocate to issue an 
 alias or a pluries list, extends to the cases of fines against 
 persons conscientiously scrupulous of bearing arms, as 
 well as to all others. That is, obviously, the intention of 
 the statute, and we can find nothing in the letter to war- 
 rant any other construction. 
 
 The fourth objection, that the list is not, like execu- 
 tions of fieri facias, &c., in the name of the state, can not 
 be supported. It is plain, that the form contended for is 
 not within the intention of the statute. By the words, a 
 list of fines, can not be meant a formal execution, running 
 in the name of the state. The objection, therefore, de- 
 VoL. IL— 13 (193)
 
 165-166 SUPREME COURT OF INDIANA. 
 
 Levelling v. Leavell and Others. 
 
 pends oil the unconstitutionality of the law. The clause 
 in the constitution saying, "the style of all process shall 
 be, The State of Indiana,'' found in the 5th article, which 
 relates to the judiciary department of the government, 
 has no relation to the manner of collecting militia lines. 
 There is a section in the seventh article, relative to these 
 fines as to the conscientious persons, which re- 
 ['•'166] quires that they shall be collected *by a civi offi- 
 cer; but it says nothing as to the form of the pro- 
 cess, — leaving that, as we conceive, to legislative discre- 
 tion. 
 
 That part of the tifth objection to this plea, which re- 
 lates to the want of a venue, is answerd by observing that 
 the place is laid in the declaration, and it was not neces- 
 sary to repeat it in a justification of the trespass, alleged 
 to be the same with that complained of. As to the other 
 part of this objection, though the statement of the fact 
 said to be omitted, is not as explicit as it might be, we 
 think that the defect is rather too slight to authorize a 
 reversal of the judgment on that ground. 
 
 The last cause of demurrer to this plea is fatal ; and 
 the plaintiff was entitled on it to the judgment of the 
 Court. The defendants, Leavell and Forkner, justify as 
 sherift' and deputy sherifl', but do not designate in their 
 plea which of them is the one, or which the other. It is 
 impossible that this can be correct. The plaintiff has a 
 right to know from the plea, which particular defendant 
 it is that justifies as the sheriff; and, also, which one it is 
 that justifies as the deputy sheriff. The plaintiff, for ex- 
 ample, might wish to deny that the person is sheriff, who 
 justifies in that character; but in this case he could not 
 do so without averring that neither of these two. defend- 
 ants was the sheriff. That would surely be subjecting 
 him to more than the law requires. 
 
 The special plea of Boggs is a bar of the suit as to him. 
 The causes of demurrer to his plea have been shown to 
 be insufficient; and it is in other respects substantially 
 good. (194)
 
 MAY TERM, 1828. 166-167 
 
 Hongland and Others i'. Moore. 
 
 Per Curiam. — The judgment is reversed with costs. 
 Cause remanded to the Circuit Court, with directions to 
 render Judgment on the demurrer in favor of Boggs, and 
 to permit the otlier defendants to withdraw their joinder 
 in demurrer and amend their plea. 
 
 Sweetser and Smith, for tlie appellant. 
 Hariden, for the appellees. 
 
 [*167] *HoAGLAND and Others i\ Moore, f 
 
 Evidence— Weight of — Review of. — If any of the evidence, which h 
 contradictory, conduce to prove the plaintiff's case, and he obtain a ver.. 
 diet, the refusal to grant to the defendant a new trial, on account of the 
 insufficiency of the evidence, will not, except in extreme cases, be avail- 
 able in error. And where a new trial is applied for on account of exces- 
 sive damages, and refused, the damages must be outrageously excessive 
 or a Court of error will not interfere (a). 
 
 Contract — Part Performance — Remedy. — In the case of a special con 
 tract, one party can not, by a part performance only of his part, sue fot- 
 and recover, in indebitatus assumpsit, for the part he has performed. 
 But if he perform a part of what he was to do, and be prevented irom 
 performing the residue by the conduct of the other party, he may aban 
 don the contract and recover for what he has done. (6). 
 
 APPEAL from the Scott Circuit Court. — Indebitatus 
 assumpsit for goods sold and delivered; a count on a 
 quantum valebant; and one on an insimul computassent. 
 Moore was the plaintiff below, and Hoagland, Hall, and 
 Ballard, were the defendants. Plea, non-assumpsit. Ver- 
 dict and judgment for the plaintiff. 
 
 Holm AN, J. — This case was referred to arbitrators who 
 made an award, which was afterwards set aside by the 
 Circuit Court, but on what grounds does not appear. 
 The presumption is that the Circuit Court acted correctly ; 
 so that it is now too late to suarsrest that this decision was 
 
 (a) 58 Ind. 431; 45 Id. 517, 148; 51 Id. 494; 57 Id. 121, 172, 314, 327. 
 See 4 Ind. 79 ; 48 Id. 153. (b) Overruled 3 Ind. 59-72. 
 
 (195)
 
 167-168 SUPREME COURT OF INDIAI^A. 
 
 Hoagland and Others r. Moore. 
 
 erroneous, without showing in the record the grounds on 
 which that suggestion is made. The plaintiff obtained 
 a verdict for 60 dollars. The defendants moved for a 
 new trial, which was refused and a bill of exce}>tions 
 taken, in which the whole of the testimony is set forth; 
 of which the following is the substance: 
 
 Abraham Poor stated, that he was present when a con- 
 tract was entered into between the plaintiff and the de- 
 fendants. The plaintiff agreed to sell the defendants 100 
 hogs and the corn in a certain crib, the quantity not 
 known. The defendants were to pay 100 dollars for the 
 hogs, and 50 cents per bushel for the corn. He heard 
 something said between the parties about the payment of 
 20 dollars immediately, but did not recollect, particular!}', 
 what it was. Jane Calvin stated that she was present 
 when the contract was made. The defendants were to 
 
 have the hogs for 100 dollars, and the corn in 
 [*168] *the crib, supposed to be 200 bushels, for 50 cents 
 
 per bushel. They were to pay 20 dollars imme- 
 diately, and execute their notes for the balance payable 
 in one year. Polly Moore testified to the same facts. 
 (She and Jane Calvin are daughters of the plaintiff.) 
 Nathaniel Poor stated, that he was present when the hogs 
 were delivered to the defendants; that there was a con- 
 versation about the obligations for the purchase-money, 
 in which Hoagland observed that it was too late to exe- 
 cute the notes, to which the plaintiff made no reply. He 
 heard nothing said at that time about money. Philip 
 Balhird stated, that the hogs when delivered were very 
 poor, and could scarcely walk; that shortly after the 
 delivery of the hogs, and after the delivery of about 80 
 bushels of corn, he went with Hoagland to demand the 
 balance of the corn; that tlie plaintiff's daughters were 
 engaged in carrying corn out of the crib which the de- 
 fendants were to have, and placing it in another; that 
 these girls, who were the witnesses in this case, went into 
 the house, and he saw them no more while he and Hoag- 
 
 (196)
 
 MAY TERM, 1828. 168-169 
 
 Hdagland and Others i'. Moore, 
 
 land remained at the plaintiff's; that a conversation be- 
 tween the plaintiff and Hoagland took place about four 
 or live rods from the house; that Hoagland demanded 
 the balance of the corn of the plaintiff", observing that he, 
 the said plaintiff', knew that he was to let him, Hoagland, 
 have 200 bushels of corn in said crib, or make up the 
 deficiency iu rye; that he, the said plaintiff', knew that 
 the whole contract depended upon his, Hoagland's get- 
 ting the corn ; that if he could get the corn, he would 
 compl}^ with the contract on his part, by executing obli- 
 gations, but if he could not get the corn, he would dis- 
 annul the whole contract; all which was neither admit- 
 ted nor denied by the plaintiff; that the plaintiff replied 
 that he could not let him have the corn; Hoagland said 
 that he would return the hogs; the plaintiff said he would 
 not receive them; that the witness heard nothing said 
 about money; that only two of the defendants were 
 present, and no money or notes were tendered. Isaac 
 Hoffman stated, that he assisted Hoagland in returning 
 the hogs to the plaintiff's, but that the plaintiff would not 
 receive them, but directed the witness to turn them out 
 of his enclosure. Jane Calvin was re-examined and 
 stated, that when Hoagland demanded the corn of her 
 father, at the time spoken of by the witness, Ballard, she 
 
 believed, but was not very positive, that her father 
 [*169] said, that one reason why *he would not let the 
 
 defendants have the corn was because they had 
 not paid him the 20 dollars. 
 
 The Court instructed the jury, that if they found that 
 the defendants had failed to comply with the contract on 
 their part, and that that was the reason the plaintiff re- 
 fused to comply, the plaintiff had a right to recover for 
 so much of his property as the defendants had received 
 on the contract; and that the plaintiff was not bound to 
 comply on his part, after the defendants had so refused; 
 and that if they found, that the defendants refused to pay 
 the 20 dollars and to execute their notes, if the same were 
 
 (197)
 
 169-170 SUPREME COURT OF INDIANA. 
 
 Hoagland and Others v. Moore. 
 
 by the contract to be done immediately, they should tiud 
 for the plaintiff the value of the corn, if any was received 
 by the defendants; unless they should lind that the corn 
 had been fed to the plaintiiF's hogs, while in the defend: 
 ant's possession; but that if the defendants had made use 
 of the corn in feeding their own stock, they were liable 
 for the value of it. 
 
 It is strongly insisted in this case that the evidence did 
 not authorize the verdict; and that therefore a new trial 
 3ught to have been granted. On this subject we find it 
 aecessary to use extreme caution ; as it is the exercise of 
 a controlling power over the discretionary powers of the 
 Circuit Court; and in cases where they generally have a 
 far better opportunity of understanding the real justice 
 of the case than we can possibly have. The right of a 
 jury in estimating the weight of evidence, and the dis- 
 cretion of the Circuit Court in sustaining a verdict, sug- 
 gested to be given against the weight of evidence, are 
 matters with which this Court should not interfere, ex- 
 cept on extraordinary occasions, where manifest injustice 
 appears clearly to have been done. In this case there is 
 contradictory evidence, which placed the credibility of 
 the witnesses before the jury. With this we have noth- 
 ing to do. When there is legal evidence that conduces 
 to prove every material fact in a case, we must, except in 
 extreme cases, leave the weight of that testimony with 
 the jury, under the superintendence and control of the 
 Court before which the testimony is given ; and when 
 that Court approves of the verdict, and refuses a new 
 trial, there is no principle of jurisprudence that will re- 
 quire or permit an appellate Court to reverse the judg- 
 ment. These remarks apply with their full force 
 [*170] to the amount of damages. It ought to be *a 
 case of damages, excessively outrageous, to au- 
 thorize this Court to reverse the iud2:nient of the Circuit 
 Court, for refusing to set aside the verdict. In this case, 
 the weight of evidence appears to have been with the de- 
 
 (198)
 
 MAT TERM, 1828. 170 
 
 Hoagland and Others v. Moore. 
 
 fendants; but that alone is not sufficient to require a re- 
 versal of the judgment. 
 
 The instructions of. the Circuit Court come next under 
 consideration. It is a well settled principle, that, where 
 there is a special contract, one party can not perform a 
 part of the contract, and, before an entire performance, 
 sue and recover in indebitatis assumpsit for the part he 
 has performed. But it is a rule equally well settled, that 
 if he has performed a part of the contract, and is pre- 
 vented from completing it by the acts or the failure of the 
 other party, he may abandon the contract and recover for 
 what he has done. Testing these instructions, as to the 
 plaintiff's right of action, by these rules, it is evident, in 
 the language of the instructions, that, if the defendants 
 failed to comply with the contract in the first instance, 
 and if that was the reason why the plaintiff refused to 
 comply on his part, he had a right to recover for so much 
 of his property as the defendants had received, and had 
 failed to return. Taking this as an entire contract for 
 the corn and the hogs, and supposing, as the plaintiff's 
 daughters testified, that the defendants were to pay to the 
 plaintiff 20 dollars immediately, and to give their notes 
 for the balance ; now, if after the delivery of the hogs 
 and a part of the corn, the plaintiff refused to deliver the 
 balance of the corn, unless the 20 dollars were paid, and 
 the defendants failed to pay it, the plaintiff would not be 
 bound to deliver the balance of the corn ; but might con- 
 sider the special contract at an end, and recover the value 
 of his property, so received and retained by the defend- 
 ants. The evidence that the plaintiff gave the non-pay- 
 ment of the 20 dollars as a reason for not delivering the 
 balance of the corn, appears to ns as of a very doubtful 
 character; but that does not affect the instructions of the 
 Circuit Court. That Court could not say there was no 
 evidence as to that fact; and surely it would not be ex- 
 pected that this Court would disregard this evidence, and 
 treat these instructions as if no such fact appeared in the 
 
 (199)
 
 170-171 SUrREME COURT OF INDIANA. 
 
 Chinn v. Kusi5ell, in Error. 
 
 case. As this was a fact that the evidence conduced to 
 establish, it was correct in the Circuit Court to inform the 
 jury what the law was, if this fact should be found 
 [*171] by them. This part of the *instructions must 
 therefore be considered as unobjectionable. The 
 balance of the instructions, as to the quantity of corn for 
 which the plaintiff had a right to recover, if he could re- 
 cover at all, is as favorable to the defendants as they could 
 reasonably ask. If the plaintiff proved a right of action, 
 he was certainly entitled to the value of the corn received 
 by the defendants, unless that corn had been fed to his- 
 hogs, while they were in the possession of the defend- 
 ants. If the defendants had made use of this corn for 
 their own benefit, the plaintiff would be entitled to the 
 value of it. 
 
 We are therefore of opinion, that, on both these points, 
 the instructions of the Circuit Court were correct. 
 
 Per Curiam. — The judgment is atiirmed, with 1 percent. 
 damages and costs. 
 
 Thompson and Nelson^ for the appellant. 
 
 Farnhnm and Thornton, for the appellee. 
 
 Chinn v. Russell, in Error. 
 
 Costs — Both Parties — Succeed (o). 
 
 THE defendant in replevin avowed the taking of the 
 goods, by virtue of his office as sheriff, on an execution 
 against a third person to whom they belonged. The 
 plaintiff pleaded propertj' in himself. The jury found 
 tliat some of the goods were the plaintiff's and that some 
 were not his. Judgment on the verdict, and that each 
 party should recover his costs. Held, that, as each party 
 had succeeded, each was entitled to costs; and that the 
 judgment was right. Powell v. Hinsdale, 5 Mass. 343. 
 
 (a) Post, 187, 267, 415 . 
 
 (200)
 
 MAY TERM, 1828. 171-172 
 
 Perkins and Another v. Smith, in Error. 
 
 Perkins and Another y. Smith, in Error. 
 
 Bond — Breach of— Judgment — Practice. 
 
 DEBT on a bond, and judgment by default. The 
 plaintiff suggested, that the bond was conditioned for the 
 delivery of property taken on execution, and assigned as 
 a breach that the condition was broken. Judgment, 
 
 without a jury, for the amount of the execution. 
 [*172] Held, that, supposing the ^assignment of the 
 
 breach to be only informal, and the want of a 
 judgment for the penalty to be unavailing in error, yet 
 the breach sho-uld have been found, and the damages 
 assessed, by a jury. R. C. 1824, p. 293 ; Clark v. Goodwin, 
 1 Blackf. 74 (1). 
 
 (1) GildeweU v. M'Gaughly, Nov. term, 1830, post; R C. 1831, p. 404; 
 il/orris v. Price, Nov. term, 1831, post. 
 
 Thomasson v. Tucker's Administrators, in Error. 
 
 Evidence — Pleadings of Co-Parties. 
 
 THE answer of one defendant in chancery is no evi- 
 dence against his co-defendant. 
 
 Weaver v Bryan, in Error. 
 
 Judgment — Re-entered — Practice. 
 
 IN order to have a judgment re-entered, under the 
 statute of 1827 relative to the burned records of Dearborn 
 county, the notice to the defendant, which answers the 
 purposes both of a writ and declaration, must state the 
 term at which the judgment was originally rendered- 
 
 (201)
 
 172-173 SUPREME COUUT OF INDIANA. 
 
 Chiun r. Russell. 
 
 Chinn i\ Russell. 
 
 Former Recovery — Different Parties. — Goods found in possession of 
 A., an execution-defendant, were levied on Hy the sheriff. B. claimed 
 the goods as his, and a jury, summoned to try the right of property, found 
 they belonged to A. Held, in replevin by B. against the sheriff, that the 
 finding of the jury was not conclusive against B. 
 
 Quare, whether A.'s unconditional possession of goods, which had beenisold 
 by him to B., renders the sale per ye fraudulent and void, or is only evi- 
 dence of fraud, as to A.'s creditors. 
 
 Replevin — Right of Possession. — Replevin lies by a person not having 
 the actual possession of the goods when taken, provided he have at the 
 time .the general property and the right of immediate possession (a). 
 
 Same — Right of Execution-Defendant. — Any person, except the execu- 
 tion-defendant, may have replevin under our statute, for his goods taken 
 in execution (b). 
 
 [*173] *APPEAL from the Marion Circuit Court.— 
 Replevin by W. S. Chinn against A. W. Russell. 
 The defendant filed two avowries and one plea. The 
 plain tilt' pleaded to the avowries and replied to the plea. 
 Demurrer to the plaintiff's pleas, and issue on his repli- 
 cation. Judgment on the demurrer for the defendant. 
 
 Blackford, J. — This is an action of replevin. There 
 are two avowries. The first states that Kinnard recov- 
 ered a judgment against Thomas Chinn, and sued out an 
 execution against his goods ; that the defendant, as sherifi", 
 by virtue of the execution, took the goods, they being in 
 the actual possession of Thomas Chinn ; that the present 
 plaintift' and another person claimed the property, and 
 the jury, summoned to tr}' the right, found it to be in 
 the plaintift', but the Circuit Court, on appeal, determined 
 the goods to belong to Thomas Chinn. The defendant 
 also averred the property to be in Thomas Chinn. The 
 second avowr}^ is the same as the first, except that it says 
 nothing as to the trial of the right of property. The de- 
 tendant also pleads that the goods belong to Thomas 
 Cliinn, and not to the plaintift'. To the avowries, the 
 
 (h) 51 Ind. 1 ; 38 Id. 461 
 
 (b) 51 Ind. 395 ; 51 Id. 1 ; 38 Id. 461. 
 
 (202)
 
 MAY TERM, 1828. 173-174 
 
 Chinn v. Russell. 
 
 plaintift' pleads that the goods are his; that Thomas Chinn 
 had possession as his bailee ; and that the plaintiff always 
 had the right to reduce them into possession at any time. 
 To the plea of property in another, the plaintitf replies 
 property in himself. The defendant demurs to the pleas 
 of the plaintiff, and joins issue on his replication. 
 
 It is contended, that the determination of the Court, as 
 to the right of property, was a justification to the sheriff'. 
 This position can not be supported. We are not aware 
 that these trials of the right of property have been ever 
 held conclusive. If the goods be found to be the debt- 
 or's, the inquisition may show that the sheriff''s conduct 
 in selling was not malicious, but it is no bar to the action 
 of the owner. Townsend v. Phillips, 10 Johns. R. 98 (1). 
 It is also contended, that the plaintiff''s permitting the 
 goods to remain with Thomas Chinn was fraudulent, and 
 rendered them subject to the execution. For this are 
 cited, Hamilton v. Russell, 1 Cranch, 309, and Sturtevant 
 v. Ballard, 9 Johns. R. 337. These are cases of goods 
 sold by the execution-defendant, where it was held, that 
 the continuance of possession by the seller without con- 
 dition, renders the sale void as to creditors. There 
 [*174] are other cases, holding this ^circumstance as only 
 an evidence of fraud (2). The present case, how- 
 ever, is altogether different from those referred to ; there 
 being no pretence here that the plaintiff' purchased the 
 property of the execution-debtor; and the authorities 
 cited have, therefore, no application. 
 
 The principal questions arising in this cause are these 
 two: First, can a person, not having the actual possession 
 of goods when taken, recover in replevin, provided he 
 have the general property, and the right of immediate 
 possession? secondly, can a person, not the execution- 
 defendant, have replevin under our statute for goods 
 tiiken in execution? Our opinion is in the afhrmative on 
 both these points. As to the first, it is evident from the 
 cases of Ward v. Macaidey, 4 T. R. 489, and Putnam V. 
 
 (203)
 
 174-175 SUPREME COURT OF INDIANA. 
 
 Chinn v. Kusscll. 
 
 Wyley, 8 Johns. R. 432, cited by the defendant himself, 
 and Gordon v. Harper, 7 T. R. 9, that the phiiiitift' couhl 
 recover, under those circumstances, in trover, or trespass 
 de bonis asportntis. And we know of no ground, as re- 
 spects this point, on which replevin can 1,0 distinguished 
 from trover or trespass. As to the second question, we. 
 are of opinion that, let the common law be as it may, our 
 statute authorizes the proceeding. According to the sta- 
 tute, whenever any person tortiously takes and unlawfully 
 detains, or lawfully acquires and unlawfully detains, the 
 goods of another, the owner may replevy. One excep- 
 tion is made, and no more; which is, that the law shall 
 not extend to execution-defendants. R. C. 1824, p. 337. 
 The case we are considerino; is one of takiuiir and detain- 
 ing without sufficient authority ; and the plaintiff is not 
 an execution-defendant: it is impossible, therefore, to say 
 that the statute does not apply to it (8). 
 
 Per Curiam. — The judgment is reversed, and the pre- 
 ceedings subsequent to the joinder in demurrer aru : i, 
 aside, with costs. Cause remanded, with directions to 
 permit the appellee to withdraw his demurrer and reply 
 to the pleas of the plaintiff. 
 
 Hurst and Gregg, for the appellant. 
 
 Fletcher and Brown, for the appellee. 
 
 (1) Sed vide R. C. 1831. pp. 237, 238. Vide, also, Bosky v. Farqmr ante» 
 p. 61, and notes (1) and (2). 2 Tidd's Prac. 8th Lond. Ed'. 1047. 
 
 (2) It has been a great question, whether the delitor's fontinuanoe 
 [••'"175] in possession of *goods, after his sale of them to another, or to be 
 considered conclusive or only prima facie evidence of frmid, as to 
 creditors. That the evidence is conclusive, is decided not only by the ( ases 
 named in the text, but by the previous one of Edwards v. Harbcii, 2 T. R. 
 587, and some others. There are many subsequent cases, iiowever, iiolding 
 the contrary opinion, whicii must be considered as having almost subverted 
 the authority of those from which ihey differ. "The conclusion," says 
 Chancellor Kent, "from the more recent English cases would seem to be, 
 that though a continuance in possession by the vendor or mortgagor be 
 prima. facie a badge of fraud, if the chattels sold or mortgaged be transfera- 
 ble from hand to hand, yet the presumption of fraud arising from that cir- 
 cumstance, may be rebutted by explanations showing the transaction to be 
 fair and honest, and giving a reasonable account of the retention of the pos- 
 session. The question of fraud arising in such cases, is not an absolute in- 
 ference of law, but one of fact for a jury ;. and if the i)ersonal chattels savor 
 of the realtv, as, for instance, the engines, utensils, and uiachinerv, belong- 
 
 {204)
 
 MAY TERM, 1828. 175-176 
 
 Chinn v. Russell. 
 
 iiig to n nianafacturiiig est:il)lisliment, no presumption of fraud will arise 
 from the want of delivery." 2 Kent's Comm. 2 Ed. p. 520. Twyne's ease 
 is the leading one on this subject. 3 Co. Rep. 80. Vide, also, A'lc/cZ v. Raw- 
 liniion, 2 Bos. & Pull. o9 ; Hoffman v. P'dl, 5 Esp. R. 22; Arundell v. Phipps, 
 10 Ves. 139, 146, 147, 151;aSW v. Brown, 1 Taunt. 381 ; Dawsm v. Wood, 3 
 id. 256; Watkins v. Birch, 4 id. 823; Meed v. Blndes, 5 id. 212; Leonard v. 
 Baker, 1 Maule & Selw. 251 ; Benton v. Thornhill, 7 Taunt. 149 ; Guthrie v. 
 Wood, 1 Stark. R. 367 ; Jezeph v. Inffram, 8 Taunt. 838 ; Armstrong v. Baldock, 
 1 Gow's R. 33; irooc/tTH/a/i v. Baldock, 8 Taunt. 676; Stewart v. Lombe, 1 
 Brod. & Bing. 506 ; Storer v. Hunter, 3 Barn. & Cress. 368 ; Latimer v. Basten, 
 4 id. 652 ; Eastwood v. Brown, Ry. & Mood. 312. In the case last cited, de- 
 cided in 1825, Abbott, C. J. says: "I shall leave it to the jury to say, 
 whether, under all the circumstances of this case, they are satisfied that the 
 assignment was made with the design of delaying or defeating creditors in 
 the recovery of their debts. I can not agree to the doctrine laid down in 
 the case cited by Mr. Scarlett. [ Wordall v. Smith, 1 Campb. 333.] The cir- 
 cumstance of an assignor who is under pecuniary embarrassments, remain- 
 ing in possession of the property assigned, is always suspicious ; but if it 
 does not appear, from other facts in the case, that this takes placg under a 
 fraudulent arrangement between the parties, for the purpose of delaying 
 creditors, I am of opinion that it is not of itself a conclusive badge of fraud. 
 1 have no tloubt that a purcha.se of a house and furniture, with an imme- 
 diate demise of that house and furniture to the vendor, may be good, if there 
 be no intention to defeat or delay creditors by the transaction, and it is ma- 
 terial that in this case it does not appear that any actions by other creditors 
 had been brought." 
 
 That the continuance of possession is only prima facie evidence of fraud 
 is the law in New York. Barrow v. Paxton, 5 Johns. R. 258 ; Beal v. Quern- 
 sey, 8 id. 452. It was, in Sfurtevant v. Ballard, 9 Johns. R. 337, decided 
 to be conclusive ; but that case is overruled, and the doctrine of the previous 
 decisions is adhered to. Vide Butts v. Swartwood, 2 Cowen, 431 ; Bissell v. 
 Hopkins, 3 Cowen, 166 and note ; Jennings v. Carter, 2 Wend. 449; Divver v. 
 M'Laughlin, id. 596 ; Hall v. Tuttle,8 id. 375. 
 
 The law in Massachusetts is like tliat in New York. Brooks v. Pcnvers, 
 15 Mass. 244 ; iV. E. M. I. Co. v. Chandler, 16 id. 279 ; Bartlett v. Williams, 
 1 Pick. 288; Budlam v. Tucker, id. 399; Homes v. Crane, 2 id. 607; Wheeler, 
 V. Train, 3 id. 255 ; Ward v. Sumner, 5 id. 59 ; Shumivay v. Butter, 7 id. 56 ; 
 S. C. 8 id. 443. 
 
 In Penn.sylvania the law is otherwise. There, the continuance of 
 
 [ ■■'176] possession ■■■"is conclusive evidence of fraud, and per se avoids the 
 
 sale, as to creditors and purchasers. Dawes v. Cope, 4 Binn. 258 ; 
 
 Glow V. Woods, 5. S. & R. 278 ; Bahh v. Clemson, 10 id. 419; Shatv v. Levy, 17 
 
 id. 99 ; Houer v. Geesman, id. 251. 
 
 Vide 2 Kent's Comm. 2d. ed. 512-532, where the reader may find a gen- 
 eral review of the English and American decisions on this litigated sub- 
 ject. Vide, also, 2 Stark, Ev. 617, and note ; Chitty on Contracts, 227, and 
 note; Roscoe on Ev. 485; Jordan v. Turner, Nov. terra, 1833, post. There 
 is an English decision on this subject, as late as 1832, the substance of which 
 is as follows : Want of possession accompanying a conveyance of chattels 
 does not of itself constitute fraud, and avoid the deed as against creditors; 
 it is only evidence (or as the cases term it, o budge) of fraud. And where a 
 bill of sale of household furniture was given as a security for a bona fide ad- 
 vance of money, and provided that if the debtor should repay the money by 
 installments, on certain days, the deed should be void, but in default of pay- 
 ment of any oi the installments, the creditor might take possession and sell 
 oflthe goods ; and that untd such default, the debtor might keep possession, — 
 the deed^was held not to be fraudulent as against a judgment-creditor by 
 reason of the debtor's remaining in possession, being given for a good con- 
 
 (205)
 
 176-177 SUPREME COURT OF INDIANA. 
 
 Chinn v. Russell. 
 
 sideration, and his continuance of possession being in terms provided for. 
 (2 W. Bl. 701; 1 B. Moore. 189 ; 2 Marsh, 427. The dictum of BuLLER, J., 
 in Eduxirdx v. Harben. 2 T. R. 587, was relied on contra ;) Marti nclale v. Booth, 
 3 Barn. & Adol. 498 ;'9 Lond. Law Mag. 429. 
 
 (3) The statute of 1831 i.s the same with that of 1824 which is cited in the 
 text. R. C. 1831, p. 424. Vide Parsley v. Hudon, May term, 1834, post. 
 It is .said In- Blackstone, that replevin lies on/// in the case of a wrongful dis- 
 tress. 3 Bl. Comm. 146. It has been since shown, however, that this is a 
 mistake; aii<l that rei)levin lies for any t<irtionj< iuLinrj of goods from the pos- 
 session of the ])laintiflr. Sli<uninti v. Sha)inon, 1 8ch. Si Lef. 327 ; Pajif/hrirn 
 V. Patridye, 7 Johns. R. 140. By the common law, there must be an actual 
 and wrongful takiiuj of the goods from the plaintifTto authori/.e the action 
 of replevin. Shannon v. Shannon, supra; Meany v. Head, 1 Mason, 322 ; Gal- 
 loimy V. Bird, 4 Bing. 209. In some of the states, replevin lies in any -case 
 where one man claims goods which are in the possession of another no mat- 
 ter how the latter'ii possession uas obtained. It is so in Pennsylvania. Weaver 
 V. Lawrence, 1 Dall. 156; Shearick v. Huber, 6 Binn. 2; Stauyhton v. Rappalo, 
 3S. & R. .562; Keite v. Boyd, 16 id. 300. So in Massachusetts. Baker v. 
 Fales, 16 Mass. 147. So in Maine. Seavcr v. Dinyley, 4 Greenl. 315. 
 
 The following is a late decision in New York : Eleplevin against a sher- 
 iff. Avowry, that the defendant took the goods by virtue of an execution 
 against G., they being found in G's possession. Demurrer to the avowry. 
 Per Curiam. — "By the pleadings it is admitted that, at the time of the taking, 
 the propertv was in the plaintiff, and the posses.sion in Griswold, the de- 
 fendant in the execution ; and the question is, whether replevin lies? Since 
 the case of Pangburn v. Pdridye, 7 Johns. R. 140, it has been settled that 
 replevin lies where trespass de bonis aRportatis will lie. The plainitfi" must 
 have property general or special, and possession either actual or construc- 
 tive. In Thompson v. Button, 14 Johns. R. 84, Chief Justice Thompson lays 
 down the broad proposition, that as a general principle it is undoubtedly 
 true that goods taken in execution are in the custody of the law, and can 
 not be taken out of such custody when the officer has found them in, and 
 taken them«out of, the possession of the defendant in the execution. In 
 Qark V. Skinner, 20 Johns. R. 467, Mr. Justice Platt has shown very conclu- 
 sivelv, that that proposition is correct only as between the defendant in 
 such execution and the officer; and in such a case, it was applied in Gard- 
 7}ery. Campbell, 15 Johns. R. 401. A variety of cases are stated by 
 [*177] Mr. Justice ■■•■Platt, in which an action of trespass would be a very 
 inadequate remedy. The case of Thompson v. Button, was_ decided 
 upon the principle of Pangburn v. Patridge, and was a case where the 
 property taken by virtue of the execution was taken from the possession of 
 the plaintiff in the replevin, and not from the po.ssession of the defendant 
 in the execution. The same principle laid down in Pangburn v. Patridge 
 ■was recognized in the late cases of Marshall v. Davis, 1 Wend. 109, and 
 Hall v. Tuttle, 2 id. 475. The plaintiff having the property in the goods in 
 question, had the constructive possession ; for the property draw.s to it the 
 pos-session. The plaintiff therefore had the right to take possession at 
 pleasure, and could have sustained trespass ; and replevin and trespass in 
 such cases are concurrent remedies. The plaintiff is entitled to judgment 
 on the demurrer, with leave to the defendant to amend on payment of 
 costs." Dunham v. Wyckoff. 3 Wend. 280. 
 
 In Massachusetts, by statute, replevin lies for goods attached on mesne 
 process or taken in execution, provided the debtor in the original suit is 
 not the i)laiutiff in replevin. Therefore, if A's goods are taken in execution 
 for B's debt. A., may maintain replevin against the officer. Oliver's Pre- 
 cedents, 464. 
 
 END OF MAY TERM, 1828. 
 
 (206)
 
 r*i78] * CASES 
 
 ARGUED AlslO DETERMINED 
 
 IN THE 
 
 SUPREME COURT OF JUDICATURE 
 
 OF THE 
 
 STATE OF INDIANA, 
 
 AT INDIANAPOLIS, NOVEMBER TERM, 1828, IN THE THIRTEENTH YEAB OF 
 
 THE STATE. 
 
 Cutler v. Cox. 
 
 Kes Adjiidicata — Pleading. — If a plea of former recovery contain suffi- 
 cient matter to show that the causes of action in the two suits are the 
 same, and that the merits were determined in the first case, the plea is 
 good; and it is not essential to the validity of the plea, that the forms of 
 the two actions be the same («). 
 
 Same — Contract — Tort. — A plea of former recovery to an action on the 
 case founded on tort, can not be objected to merely because the first ac- 
 tion was covenant ; the causes of action appearing to be the same, 
 
 Contract of Warranty— Breach of — Remedy — Action. — In the sale of 
 goods with an express warranty as to their quality, assumpsit lies for 
 the breach of contract not under seal, or case lies for the commission of 
 the tort. So, if an injury be occasioned by the negligence of an attorney^ 
 or of a stage proprietor, assumpsit lies on the undertaking or case upon 
 the duty. (b). 
 
 Contract — Fraud — Breach. — If the breach of contract, for which an ac- 
 tion of covenant is brought, was accompanied with fraud, the fraud is a 
 proper subject of inquiry in that action, and may be specially averred in 
 the declaration. 
 
 («) See 49 Ind. 309 ; 12 Id. 629 ; 68 Id. 240 ; 45 Id. 489 ; 37 Id. 264. 
 (6) 9 Id. 572. 
 
 (207)
 
 178 179 SUPREME COURT OF INDIANA. 
 
 Cutler V. Cox. 
 
 Former Recovery — Pleading — Record. — If a plea of former recovery 
 aver the causes of action to be the same, and the record do not show them 
 to be different, the averment, on a demurrer to the plea, must be taken 
 as true. 
 
 Contract — Fraud — Remedy — Practice. — When an action on the ca* in 
 brought for fraud in the breach of a contract, the gist of the action is the 
 fraud committed at the time of the breach ; and if the j^laintiff can not 
 maintain an action for the fraud committed at that time, no subsequent 
 damages will enable him to maintain it. 
 
 Res Adjudicata — Tort — Contract. — To an action of covenant for not 
 
 furnishing such a boat as is required by a contract under seal, accord 
 
 and satisfaction may be pleaded in bar; and if, on the trial of an 
 
 P179] "'issue to a replication denying the plea, there be a verdict and 
 judgment for the defendant, the merits of the case are settled, and 
 the judgment is a bar to any future action, though founded on tort, for 
 the same cause. 
 
 Pleadino — Answer — Practice. — If there be two pleas, eacli to the whole 
 cause of action, and one on demurrer be adjudged good, the plaintiff can 
 proceed no further. 
 
 ERROR to the Johnson Circuit Court. 
 
 Blackford, J. — This was an action on the case founded 
 on tort. The declaration contains four counts. The 
 first three state that the parties entered into an agree- 
 ment under seal, by which the defendant became bound to 
 buikl for the plaintiff a good and sufficient New-Orleans 
 boat, for a certain and fair price; that the boat was built 
 and delivered, and the price paid; that at the time of 
 delivery there were defects in the boat, which were under 
 the water and not discoverable; that on taking the boat 
 aoout two miles from the place of delivery, it sank in 
 consequence of those defects. The first two counts aver 
 that the defects were known to the defendant; and the 
 third contains an express warranty. The fourth count 
 states, that the plaintift" bargained with the defendant to 
 buy of him a New-Orleans boat for a certain price; that 
 the price was accordingly paid, and the boat delivered as 
 a good and sufficient New Orleans boat ; the averments in 
 this fourth count as to the defects, the defendant's knowl- 
 edge, and the loss of the boat, are similar to those in the 
 
 (208)
 
 NOVEMBER TERM, 1828. 179-180 
 
 Cutler V. Cox. 
 
 first two counts. All the counts allege special damage to 
 a large amount, occasioned by the loss of the boat. 
 
 There are two special pleas in bar. The first is sub- 
 stantially as follows: that the plaintifli' had previously 
 impleaded the defendant in a plea of covenant, to recover 
 damages for the non-performance of the agreements in 
 the several counts of the present declaration mentioned ; 
 that the defendant pleaded an accord and satisfaction, on 
 which issue was joined; that the parties produced their 
 evidence on the trial of that issue; and that the verdict 
 and judgment were in favor of the defendant, and were 
 still in force. The plea also avers that the New-Orleans 
 boat, mentioned in the action of covenant, is the same 
 with that in this suit mentioned; and that the sealed 
 agreement, set forth in the action of covenant, and the 
 agreements, breaches, and oft'ences, in the present decla- 
 ration mentioned, are the same identical agree- 
 [*180] ments and breaches, and not other ^difi'erent 
 agreements, ofiences, or breaches. There was a 
 general demurrer to this plea, and judgment for the 
 defendant. 
 
 As to form, this plea is very defective ; but with that 
 objection we have nothing to do on a general demurrer. 
 If it contains sufficient matter to show that the causes of 
 action in the two suits were the same, and that the merits 
 were determined in the first case, the plea is a good bar. 
 
 The first inquiry then is, were the causes of action the 
 same? All the counts in the present action, it is true, 
 are founded in tort; but, at the same time, they all set 
 out a contract, and show that this action is brought for a 
 deceit in the performance of that contract. The first 
 three counts explicitly state the contract to be under seal; 
 the fourth is silent as to the seal, but the plea avers the 
 agreement here stated to be the same sealed agreement 
 mentioned in the other accounts, and the demurrer ad- 
 mits it to be so. The counts, also, all show that the con- 
 tract was for the delivery of an Orleans boat, and that 
 Vol. II.— 14 (209)
 
 180-181 SUPREME COURT OF INDIANA. 
 
 Cutler r. Cox. 
 
 tho injury complained of, consisted in the boat's not 
 being as good as the plaintiff had a right to expect. It 
 is consequently plain, that these causes of complaint, 
 here set out in this action on the case, are the letritimate 
 foundation of an action of covenant; being the breaches 
 of a contract under seal. Fraud to be sure is alleged in 
 these breaches, but that circumstance tends to strengthen 
 the idea of a violation of the contract. This fraud in the 
 breaches shows, perhaps, that an action on the case for 
 the deceit might have been supported; but it does not 
 furnish the shadow of a reason' against -the propriety of 
 an action of covenant, for the fraudulent breach of con- 
 tract. That there should be two different forms of action 
 for a redress of the injury here complained of, is nothing 
 extraordinary. Similar occurrences are not unfrequent. 
 For example, if in the sale of goods ihexe be an express 
 warranty as to their qualit}^ assumpsit lies for the breach 
 of contract not under seal, or case lies for the commission 
 of the tort. So, if an injury be occasioned by the negli- 
 gence of an attorney, by that of a coach proprietor, &c., 
 you may bring assumpsit on the undertaking, or case 
 upon the duty. Other instances might easily be given. 
 The circumstance, then, that the former was an action of 
 covenant is no evidence that the same injuries may not 
 have been redressed by it, for which this action on the 
 
 case is brought. 
 [*181] *The plaintiff contends, that, to the plea in a 
 
 former suit, he could not reply the fraud set out 
 in the present one. Whether he could or not, we shall 
 not stop to inquire. The fraud in the breach of contract 
 for which this action on the case is brought, was a proper 
 subject of inquiry in the action of covenant. The plain- 
 tiff was bound, when he resorted to the action of eov- 
 enant, to adopt the measures best calculated to secure an 
 examination, in that suit, not only of the breach of con- 
 tract, but of the fraud connected with it. His declaration 
 was the appropriate place for any special averment of the 
 
 (210)
 
 NOVEMBER TERM, 1828. 181-182: 
 
 Cutler I'. Cox. 
 
 fraud, like that he speaks of, which might be deemed es- 
 sential to a full investi_scation of the subject. If the fraud 
 was not averred nor investigated in the tirst suit, the plain- 
 tiff sliould iiave shown it; and then it would have been 
 [troper to examine whether that could make any dift'er- 
 eiice. No such tiling, however, is shown ; on the con- 
 trary, as the breach and offences in the second action 
 com.plained of, are averred by the plea to be identically 
 the same with those complained of in the first action; 
 and as this fact is not only uncontradicted by the record, 
 but admitted by the demurrer to the plea; we are bound 
 to presume that all the fraud alleged in the present action 
 on the case, w^as included in the former action of covenant. 
 
 The plaintiff further contends, that in the action of cov- 
 enant the subsequent damages could not have been known; 
 and that, therefore, for those at least this action will lie. 
 This position is as untenable as the other. The gist of 
 the action on the case is the fraud committed at the time 
 of the breach of contract in the delivery of the boat. If 
 the plaintiff can not maintain his action for that fraud, 
 committed at that time, no subsequent damages will en- 
 able him to maintain it, because those damages can not 
 of themselves constitute a cause of action. This princi- 
 ple is established by a very earl}- case. A man brought 
 an action of assault and battery for beating his head upon 
 the ground, and recovered. Afterwards, a piece of his 
 skull came out in consequence of the same battery, and 
 he sued again. The former recovery, however, was held 
 to be a bar to the subsequent suit. Fetter v. Beale, Salk. 
 11. That decision is referred to wnth approbation by 
 Justice Ilolroyd, in the late case of Howell v. Young, 5 
 Barn. & Cress. 259. The subsequent damages, 
 [-^182] therefore, not constituting a ground of action ,*fur- 
 nish no reason for supposing the cause of the pres- 
 ent suit to be different from that of the former one. 
 
 From the view which we have now taken of this case, 
 the record does not appear to show any difference in these 
 
 (211)
 
 182 SUPREME COURT OF INDIANA. 
 
 Cutler ('. Cox. 
 
 causes of action. To establish the difference, the plain- 
 tiff relies on the facts, that the tirst suit is covenant, and 
 the second case ; that the gist of the one is contract, and 
 of the other fraud ; and that daniag-es, covered by the last 
 suit, have accrued since the termination of the first. These 
 circumstances have been examined, and we find them all 
 to be perfectly consistent with the idea, that the causes 
 of the two suits are sub»tantially the same. The record, 
 therefore, showing no difference in the causes of these 
 actions, and the plea averring them to be the same, the 
 plaintiff' in making the objection, should have denied, by 
 a special replication, that they were the same, and have 
 thus submitted the question to the determination of a jury. 
 Instead of doing so, however, he demurred to the plea, 
 and thus trusted the fate of his objection to the face of 
 the pleadings. That being the case, and the record not 
 showing the causes of action to be different, they must 
 be considered to be the same. 
 
 The second inquiry is, were the merits of the cause tried 
 in the action of covenant? The plea was accord and sat- 
 isfaction. The plaintiff contends that as his action was 
 founded on a deed, this plea was no bar. lie did not, 
 however, trust to a demurrer; and, if he had so trusted, 
 lie would have failed. The objection is not tenable. The 
 action of covenant was for a wrong in the furnishing of 
 a boat, and the object was to recover damages for that 
 ■wrong. But if the plaintiff" had already received a satis- 
 faction for the injury complained of, his right of action 
 was gone; and the defendant could certainly plead the 
 satisfaction in bar. This is t':e decision in Blake's case,, 
 6 Coke, 44. The plaintiff', in answer to the plea, had a 
 right to show that it was not true; or that the satisfac- 
 tion was not a legal one. He chose to rest his case on 
 the former ground, and accordingl}' replied to the plea 
 by denying the accord and satisfaction. Issue was joined 
 upon that replication; botli parties produced their evi- 
 dence at the trial; and a verdict and judgment were reu- 
 
 (212)
 
 NOVEMBER TERM, 1828. 182-183 
 
 M'Coy and Another v. Elder. 
 
 dered for the defendant. This settled the merits of the 
 action of covenant ; a competent tribunal having deter- 
 mined that for the injuries there complained of, 
 [*183] the ^plaintiff had received a full compensation. 
 It settles also the present action on the case; be- 
 cause the substantial causes of the two actions being the 
 same, as has been already shown, the decision which put 
 an end to the one, must of course be a bar to the other. 
 Nemo bis vexari pro eadem causa, is one of the first maxims 
 of the law. 
 
 The plea therefore in this cause, of a former recovery, 
 is a sufficient bar. There is another special plea, but it 
 is unnecessary to examine it. One plea to the action, 
 being adjudged good on demurrer, the plaintiff" can pro- 
 ceed no further. 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Hester, Sweetser and Gregg, for the plaintiff". 
 
 Whitcomb and Fletcher, for the defendant. 
 
 M'CoY and Another v. Elder. 
 
 Sheriff — Form of Execution. — An execution commanding the sheriff 
 that of the goods of A., B., and C, he make, &c., which D. had recovered 
 against the said A. and others, is not objectionable for not stating the re- 
 covery to have been against the said defendants A., B., and C, the ex- 
 pressions being substantially the same. 
 
 Execution — Debtor and Bail. — A joint execution may issue against a 
 judgment-debtor and his replevin-surety. 
 
 Damages — Measure of — Breach of Replevin-Bond.— Debt on a bond 
 for the delivery of goods, taken on an execution which had issued against 
 a judgment-debtor and his replevin-surety. Judgment, on demurrer, for 
 the plaintiff. Held, that the measure of damages, if they did not exceed 
 the penalty of the bond, was the amount due on the original judgment, 
 with interest and costs; but that the assessment could not exceed the 
 penalty (a). 
 
 (a) Post 268. 
 
 (213)
 
 183-184 SUPREME COURT OF INDIANA. 
 
 . M'Coy and Another v. Elder. 
 
 APPEAL from the Decatur Circuit Court. — The bond 
 on which this suit was brought, was executed by A. C. 
 M'Coy and G. S. M'Coy, the defendants below, to A. 
 Elder, the plaintiiF below, conditioned for the delivery, 
 at a particular time and place, of certain property to the 
 sherifi", upon wliicli ho had levied an execution in favor 
 of the plaintiff. 
 
 Scott, J. — Debt on a delivery bond. Demurrer to the 
 declaration, and judgment for the plaintitf for the pen- 
 alty of the bond, to be discharged by the payment of the 
 damages sustained. Writ of inquiry waved and damages 
 assessed by the Court, by consent of the parties. The 
 record of the original judgment, on which the 
 [*184] execution and replevin-bond were ^founded, was 
 produced in evidence, and final judgment ren- 
 dered for the amount appearing to be due. 
 
 It is objected by the plaintiff in error that the execu- 
 tion is void, because it refers to a judgment against An- 
 gus C. M'Coy and others, not named, and the sheriff is 
 commanded to levy it on the property of Angus C. 
 M'Coy, John C. M'Coy, James Hamilton, Cyrus Hamil- 
 ton, and John S. Forsyth. In the execution, as set out in 
 the bill -of exceptions, the command to the sheriff' is in 
 these words: You are hereby commanded that of the 
 goods, chattels, lands and tenements, of Angus C. M'Coy, 
 James Hamilton, Cyrus Hamilton, John C. M'Coy (and 
 John S. Forsyth as security,) you cause to be made, to 
 satisfy Andrew Elder, the sum of 212 dollars, which the 
 said Andrew Elder, late in our Decatur Circuit Court, 
 recovered against the said Angus C. M'Coy and others. 
 There is no ambiguit}' in this phraseology; the execution- 
 defendants are all named in the first instance^ and the 
 allegation that the amount to be made had been recov- 
 ered against the said Angus C. M'Coy and others, is tan- 
 tamount to saying it "had been recovered against the said 
 defendants, repeating all their names. 
 
 It is further objected that the execution is aa^ai-nst live 
 
 (214)
 
 NOVEMBEli TERM, 1828. 184-185 
 
 M'Coy and Another i'. Elder. 
 
 defendants, and the judgment on which it was issued is 
 against four only. There is nothing in this objection. 
 The judgment is against Angus C. M'Coy, James Ham- 
 ilton, Cyrus Hamilton, and John C. M'Coy; and, after 
 judgment rendered, John S. Forsyth became replevin- 
 surety; the execution therefore very properly issued 
 against the five. 
 
 The only remaining objection, which we deem it neces- 
 sary to notice particularly, is, that the judgment, replevin- 
 bond, and execution, were not proper evidence of the 
 amount which the plaintiff was entitled to recover. Had 
 the amount of the orio;inal iudo'ment exceeded the i^en- 
 alty of the delivery-bond, and had judgment been ren- 
 dered for that amount, there would have been some 
 ground for this objection. The statute authorizing de- 
 livery-bonds, contemplates a bond in double the amount 
 of the value of the property seized ; that value is a mat- 
 ter to be settled between the siierifi:" and the execution- 
 defendant at the time of giving the bond, and the pen- 
 alty of the bond is a limit to the damages, which 
 the defendant and his sureties agree to pay in case of 
 
 failure to deliver the property. 
 [*185] ^Below this amount, we know of no measure of 
 damages, better adapted to the purposes of justice, 
 than the original judgment with interests and costs (1). 
 
 Several other points have been noticed by the plaintiff 
 in error, as defects in the proceedings, wdiich, if they are 
 defects at all, should have been taken advantage of at an 
 earlier stage of the proceedings. The judgment of the 
 Circuit Court must be affirmed. 
 
 Pe7' Curiam.. — The judgment is affirmed, with b jper cent. 
 damages and costs. 
 
 Stevens, for the appellants. 
 Lane and Smith for the appellee. 
 
 (1) The statute now is, that in cases like that in the text, the amount 
 due on the execution shall be assessed in favor of the plaintiff, provided 
 the propertv so taken be of sufficient value to satisfy the same, and if not, 
 
 (215)
 
 185-186 SUPREME COURT OF INDIANA. 
 
 Mitchell V. Sheldon and Another. 
 
 then the value of the property so taken, together with ten per centum 
 thereon. R. C. 1831, p. 239. 
 
 It is decided, that, under this act, the plaintiff is entitled to the 10 per 
 cent, damages, as well where the value of the property is sufficient to satisfy 
 the execution, as where it is not. Mitchell el al. v. JJenbo, May term, 1833 
 The law is the same in the case of delivery-bonds taken hy constables, 
 K C. 1831, p. 107. 
 
 Mitchell v. Sheldon and Another. 
 
 Consideration — Failure of — Pleading. — If, to assumpsit on a promis- 
 sory note, the defendant plead a failure of consideration on account of 
 the non-delivery of goods, the plaintiff may reply generally, that the con- 
 sideration has not failed. The note is prima facie evidence of a consider- 
 ation ; and the want or failure of consideration, in such case, must be 
 pleaded and proved (o)- 
 
 Practice — Trial and Issues. — Assumpsit on a promissory note. Two 
 pleas: 1st, non-assumpsit, and issue; 2d, as to part, a failure of consid- 
 eration. Replication as to the second plea, demurrer and judgment for 
 the plaintiff. Held, that, whilst the first issue was undisposed of, the 
 plaintiff could not have final judgment for the amount of the note (6). 
 
 ERROR to the Harrison Circuit Court. — Sheldon and 
 Dixon were the plaintiffs below, and Mitchell was the 
 defendant. 
 
 IIoLMAN, J. — Assumpsit on a promissoiy note for 246 
 dolhirs and 48 cents. Pleas, first, non-assumpsit, and 
 issue; secondly, that the note was given upon the con- 
 sideration, that the plaintiffs agreed to put up and deliver 
 to said defendant, goods, wares, and merchandise, to the 
 value of said sum by invoice ; and the said defend- 
 [*186] ant avers, that the said plaintifls failed to ^deliver 
 by invoice a part of said goods, wares, and mer- 
 chandise, to the value of 100 dollars; which the said de- 
 fendant is ready to verify. Wherefore he says, that the 
 consideration of the note aforesaid, to the value -of said 
 goods, wares, and merchandise, not delivered as afore- 
 said, has failed And as to the residue of said demand, 
 in said declaration mentioned, the defendant snys-notli- 
 
 (a) 5 Blkf. 334 ; 6 Id. I'll. 
 
 (b) 36 Ind. 241 ; 48 Id. 107 ; 50 Id. 529 ; 54 Id. 161 ; 55 /(/. 194 ; 60 Id. 95. 
 
 (216)
 
 NOVEMBER TERM, 1828. 186 
 
 Mitchell r. Sheldon and Another. 
 
 ing in bar or preclusion thereof; nor can he deny that 
 tor said residue he did undertake and promise, as charged 
 in said declaration. Replication, that the plaintiffs ought 
 not to be barred from maintaining said action for the 
 full amount mentioned in said note, because they sa}^, 
 that the consideration of the said note hath not failed, 
 nor has any part thereof, in manner and form as the de- 
 fendant hath stated, &c. Special demurrer by the defend- 
 ant, because the replication does not specially anwer the 
 allegations in the plea, nor aver the delivery of the 
 goods, &c. 
 
 The Circuit Court overruled the demurrer, and, gave 
 judgment for the plaintiff for the amount of the note, 
 without taking any notice of the issue on the plea of 
 non-assumpsit. This was wrong; and this is the only 
 error in the case; for the replication to the special plea 
 is sufHcient. The note is prima facie evidence of a con- 
 sideration, and when a -want or failure of consideration 
 is relied on, it must be pleaded and proved. The non- 
 deliver}^ of the goods, mentioned in the special plea, con- 
 stituted the failure of consideration set up in this case, 
 and it lay upon the defendant to prove that the goods 
 were not delivered. Consequently, a general replication 
 was all that could be required of the plaintiffs. But 
 final judgment should not have been given, until some 
 disposition had been made of the first issue. It is true, 
 that all the amount of the note but 100 dollars, is admit- 
 ted to be due to the plaintiffs, ^'et as the plea of non- 
 assumpsit extends to the whole cause of action, the claim 
 of the plaintiffs to the 100 dollars may be controverted 
 under it: the issue on that plea should, therefore, have 
 been submitted to a jury. 
 
 Per Curiam. — The judgment is reversed with costs. 
 Cause remanded, &c. 
 
 Nelson and Fecruhavi, for the plaintiff. 
 Dewey, for the defeiulants.
 
 187 SUPREME COURT OF IXDIANA. 
 
 Wrieht v. Mathews and Another. 
 
 [*187] "j^Wright r. Mathews and Another. 
 
 Witness — Interested — Voire Dire — By whom Examined. — It a witness 
 be objected to as interested, and his interest be proved by other witnesses, 
 the party calling the witness has no right to examine him on his voire 
 dire; that right belonging alone to the party who makes the objection. 
 
 Replevin — Right to a Part — Pro Tanto. — If an action of replevin be 
 brought for taking several articles, and, on an issue as to the plaintiff's 
 property in them, he only prove himself entitled to a part, — the defend- 
 ant has a right to a return of the others and to damages for the taking 
 of them. In such case each party succeeds, and each is entitled to his 
 costs. 
 
 Rent — Distress — Avowry — Pleading. — An avowry for rent due need not 
 show that a warrant, founded on oath, had been taken out before making 
 the distress ; nor that the goods distrained belonged to the tenant ; nor 
 need it set out the particulars of the landlord's title (a). 
 
 ERROR to the Wajne Circuit Court. 
 
 Blackford, J, — William and Jonathan Mathews brought 
 an action of replevin against William AVright. The de- 
 claration states, that, in a certain house in the town of 
 Milton, county of Waj'ne, the defendant forcibly' took 
 and unlawfully detained from the plaintitFs 17 planes, 3 
 hand-saws, 2 tenon-saws, 8 paring chisels, 6 mortising 
 chisels, 1 bureau, and a variety of other articles particu- 
 larly described in the declaration, alleged by the plaintiffs 
 to be their joint property'. 
 
 The defendant avowed the taking as a distress for rent. 
 The avowry is as follows: And the said William Wright 
 comes and defends the wrong and injury, when, kc, and 
 well avows the taking of the said goods and chattels in 
 the said declaration mentioned, in the said house in 
 which, &c., and justly, &c., because he says that one Na- 
 thaniel Peak for a long time, to wit, for the space of one 
 year next before and ending on the first day of June, 
 1827, and from thence until and at the said time when, 
 &c., held and enjoyed the said house in which, &c., with 
 the appurtenances, as tenant thereof to the said William 
 
 (a) 1 Ind. 54; 6 Id. 4U ; 2 Id. 579. 
 
 (218)
 
 KOVEMBEU TERM, 1828. 187-188 
 
 Wright V. Mathews and Another. 
 
 AVriglit, by virtue of a certain demise thereof to liim the 
 said Nathaniel Peak tlieretofore made, at and under a 
 certain yearly rent, to wit, the yearly rent of 18 dollars, 
 payable at the expiration of the year; and because the 
 said sum of 18 dollars, the rent, aforesaid for the space of 
 one year, ending as aforesaid on the said first day of June, 
 1827, and from thence until and at the said time when, 
 
 &c.,Avas due and in arrear from the said Nathaniel 
 [*188] Peak to the said WilliamWright ; he the said ^=de- 
 
 fendant well avows the takina: of the said oroods 
 and chattels in the said house, in which, &c., as for and 
 in the name of a distress for the said rent so due and in 
 arrear to the said William Wright as aforesaid, and which 
 still remains due and unpaid. And this he is ready to 
 verify; wherefore he prays judgment and a return of the 
 said goods and chattels to be adjudged to him, &c. The 
 defendant also pleaded, 1st, property in himself; 2d, prop- 
 erty in Nathaniel Peak. The plaintiffs demurred gen- 
 erally to the avowry ; and replied to the pleas, property 
 in themselves. 
 
 On the demurrer to the avowry, the Court rendered 
 judgment in favor of the plaintiffs. At the trial of the 
 issues joined on the pleas, a witness of the defendant was 
 objected to as being interested. The plaintiffs proved 
 the incompetency, by other witnesses, to the satisfaction 
 of the Court. After which, the defendant offered to 
 swear the witness on his voire dire, for the purpose of 
 showing that he was not interested. The plaintiffs ob- 
 jected to this, and the Court sustained the objection. 
 When the testimony was closed, the Court instructed the 
 jury, that if the plaintiffs had supported their case as to 
 any one article of property s[)eeified in the declaration, 
 although the}" had failed as to all the residue, they were 
 entitled to a verdict for so much. The verdict was as 
 follows: "We the jury have agreed, and find for the 
 plaintiffs, and assess their damages at 5 dollars." Judg- 
 
 (219)
 
 188-180 SUPREME COUKT OF INDIANA. 
 
 Wright V. Mathews and Another. 
 
 nient was accordingly rendered for the damages so found, 
 together with the costs of suit. 
 
 Wright is the plaintiff in error, and assigns the follow- 
 ing reasons for a reversal of the judgment against him: 
 1st, that the witness should have been sworn on his coh^e 
 dire; 2d, that tlie instructions to the jury were incorrect; 
 3d, that the demurrer to the avowry should not have been 
 sustained. 
 
 There is nothing in the first objection. A witness can 
 never be examined on the voire dire as to his interest, un- 
 less called on by the party objecting to him. This point 
 is expressly decided in Viiicent v. Lessee of Huff, 4 Serg. & 
 11. 298. 
 
 As to the second objection, the instructions of the 
 Court ought not, certainly, to have stopped where they 
 did. The defendant in replevin is an actor. He is en- 
 titled to a return of all the goods which the plaintiff does 
 not prove himself authorized to retain. When 
 [*189] the Court, therefore, informed the *jury that the 
 plaintiffs were entitled to a verdict as to the part 
 proved, though they had supported their case only as to 
 a single one of the articles mentioned in the declaration, 
 they ought to have gone further and informed the jury, 
 also, that, as to the residue of the articles, it was their 
 duty to find for the defendant. The issues in fact were 
 upon the plaintiffs' property in the goods. Their proof 
 of propert}^ in a part, entitled them to damages on ac- 
 count of the unlawful taking of that part. Their failure 
 of proof as to the residue, entitled the dislendant to a re- 
 turn thereof, and also to damnges on account of this part 
 of the goods having been improperly taken on the writ. 
 In such a case each part}' succeeds, and, under the statute 
 giving costs to the successful party, each is entitled to his 
 c-osts. Powell V. Ilin^dale, 5 Mass. 343. The instructions 
 of the Cou^'t must be presumed to have been :i|)plieable to 
 the case; and it is easy to conceive, that they nuiy have 
 misled the jury by inducing them to confine their verdict 
 
 (220)
 
 NOVEMBER TERM, 1828. 189-190 
 
 Wrio'ht V. Mathews and Another. 
 
 to the beuetit of tlie plaintitt^, instead of extending it also 
 to the beneiit of the defendant. 
 
 The third en-or assigned is, that the demnrrer to the 
 avowry was inn.roperly sustained. The first object,on 
 made by the defendants in error to the avowry, is that ,t 
 
 Ls not show that a — >»■. '--"'"\ "f'";' :t;.r 
 taken out by tlie landlord before making the d.st.ess 
 i rL, thit the statute of 18-24 requires an oath and 
 warrant previously to the distress; but -« ;'» "°yj' ^^ 
 that this eircumstance need change the estabhshed foin 
 o the avowrv. Before the statute of frauds the verbal 
 plomtse of an executor was obligatory; th,s law was 
 Utered bv that statute, and it became necessar. for the 
 lise t-o be in writing. The form o the deelarat.on. 
 however, continued as it was previously to the statute 
 So in tke present case, these statutable requ.s.t.ons to 
 tl validity of a distress, like that of writ.ng to the yahd- 
 tv of an executor's promise, may be considered as mat- 
 ll^ot evidence, and not of pleading. Another ob,ec .on 
 of the defendants in error to the avowry is, that it does 
 "lot e'ative their averment of property in the goods. 
 :„!- 1 nothing in this objection. The goods wei-e 
 found on the piemises of the tenant, and were conse- 
 n e „ly subject p.-i™«/««>, to be distrained by the land- 
 ' ^ lord tor rent arrear, without regard to whom hej 
 r*190] belonged. Bradby on *Distress, 106. If he^e 
 *■ ^ .oods were within any of the rules of exemption 
 prescribed by the law, the plaintiffs below were bound to 
 how that circumstance by a plea ♦<> ««;™-;^ ,, ^^^^ 
 was the course pursued in Francts -^f'"' ^,«,» ';,lf f. 
 Had the avowant averred, as it is contended he »hou d 
 have done, that the goods distrained were the property 
 of the teniuit, the avowry would have been without a 
 precedent in the history of the action of.'^'^""^ 
 ' The plaintiff in error, however, ,s ""^'"ken « hen he 
 supposes this avowry to be good at common la . It can 
 not be supported under that law, because the title of the 
 
 /001 \
 
 190 SUPREME COUKT OF INDIANA. 
 
 Wright V. MatJiews and Another. 
 
 landlord to the premises, on which the distress was nuido, 
 is not set out in the avowry. "2 Will. Saund. 284. Il 
 would not be good in New York in consequence of th;it 
 defect. Harrison v. JWInfosh, 1 Johns. R. 380, 384. But 
 in England, now, by the statute of 11 Geo. 2, the hmd- 
 lord is excused from setting forth his title further than is 
 done in this avowry. 2 Wil'. S u: d. 284. We have a 
 statute similar to that of Geo. 2, wl.icli authorizes the 
 same mode of proceeding, R. C. 1824, p. 103; : ml it is 
 this statute of ours, and not the common law, which au- 
 thorizes the avowant to omit the particulars of his title. 
 
 It has now been shown that the avowry, in this case, 
 can not be objected to for not averring the previous issu- 
 ing of a warrant, founded on the landlord's oath, because 
 that is a matter of evidence, not of pleading; nor for not 
 averring the goods to be the tenant's property, bee i use no 
 law requires such an averment; nor is it dofectivc on ac- 
 count of the landlord's title to the premises not being 
 specially stated, because the statute has dispensed with 
 that formalit}'. The consequence is, the demurrer to the 
 avowry should have been overruled. 
 
 It will be recollected that it appears by this record, that 
 there were two issues in fact and one in law, all of which 
 were determined in favor of the plaintiffs below. The 
 verdict can not be sustained, because the instructions to 
 the jury were incorrect; and the judgment on demurrer 
 is erroneous, because the avowry is good. 
 
 Per Curiam. — The judgment is reversed, and the pro- 
 ceedings on the issues are set aside, with costs. Cause 
 remanded, &c. 
 
 Smith, for the plaintiff. 
 Bariden, for the defendants. 
 
 (222)
 
 NOVEMBER TERM, 1828. 191 
 
 I'nffles r. Graves. 
 
 [*191J *Ungles V. Graves. 
 
 Evidence — Execution of Deed. — The subscribing witness to a deed re- 
 sided in Ohio, and the acknowledgment had been taken there before the 
 mayor of Cincinnati. Held, tliat the deed, — on proof that the grantor 
 had executed it, and that the witnesses had subscribed it, in the presence 
 of the witness, — was admissible in evidence (o). 
 
 Rent— Constable — Levy. — A constable is virtually within the provisions 
 of the statute, requiring sherifls to pay rent before the removal of goods 
 taken in execution on demised premises; and, when sued for improperly 
 paying rent, he is bound to give some evidence that the rent was due. 
 
 ERROR to the Marion Circuit Court. 
 
 HoLMAN, J. — Graves obtained a judgment before a jus- 
 tice of the peace against Rufus Jennison. On this judg- 
 ment lie took out an execution, which he placed in the 
 hands of Ungles, a constable. Tingles returned, that, out 
 of the property of said Jennison, he had made the sum 
 of 57 dollars and 31 cents; all of which, except the costs, 
 he had. paid to Samuel Jennison, en notice: which notice, 
 being a claim of said Samuel Jennison's to the sum of 75 
 dollars, for two quarters' rent of the premises on which 
 the property was executed, was made a part of the con- 
 stable's return. Graves then sued out a scire facias, re- 
 quiring Ungles to show cause why he should not pay, on 
 said execution, the money thus paid to Samuel Jennison. 
 To this scire facias, the notice and claim of Samuel Jen- 
 nison were pleaded; with an averment that the said Sam- 
 uel Jennison, the landlord of the premises on which the 
 property was executed, proved to the satisfaction of the 
 constable, that he, as landlord, was entitled to said money, 
 for rent then due, which money was paid accordingly. 
 The justice of the peace gave judgment in favor of Ung- 
 les. Graves appealed to the Circuit Court, and obtaitied 
 a judgment against Ungles for the amount he paid to the 
 landlord. 
 
 By a bill of exceptions we learn, that, ou the trial be- 
 
 (a) 7 Blkf. 176,355; 4 W. 522. 
 
 (223)
 
 191-192 SUPREME COURT OF INDiAN^A. 
 
 Ungles V. Graves. 
 
 fore the Circuit Court, Ungles introduced a patent from 
 the United States to David E, Wade, for the premises on 
 which the property was executed; and offered in evi- 
 dence a deed from Wade to Samuel Jennison for the 
 said premises, attested by Isaac G. Burnett and William 
 Jones, and acknowledged before Isaac G. Bur- 
 [*192] nett, *mayor of Cincinnati; which deed was re- 
 jected by the Circuit Court. He then proved by 
 Rufus Jennison, that Wade signed, sealed, and acknowl- 
 edged said deed; and that Isaac G. Burnett and William 
 Jones, who now reside in the city of Cincinnati, state of 
 Ohio, subscribed their names as witnesses to said deed in 
 his presence. This evidence was also rejected by the 
 Circuit Court; but we think it should have been ad- 
 mitted. 
 
 A constable, though not named, is, virtually, within 
 the provisions of the act of assembly, that requires sher- 
 iffs to pay rent due on demised premises, before prop- 
 erty taken in execution on said premises is removed; 
 and, when sued for paying rent improperly, he is bound 
 to give some evidence that the rent was due. 3 Stark. 
 Ev.'l354; Keightley \. Birch, 3 Campb. 521. The land- 
 lord's title to the premises is a principal feature in the 
 officer's defence; and we think the deed from Wade to 
 Samuel Jennison, was sufficiently proved hy the testi- 
 mony of Rufus Jennison. When the subscribing-wit- 
 nesses to a deed reside in another state, proof of their 
 hand writing is generally deemed sufficient. In some 
 cases, however, proof of the hand writing of the obligor 
 or grantor has also been required. In this case, the evi- 
 dence embraces both these requisitions. Rufus Jennison, 
 who is a competent witness, testifies to the execution of 
 the deed by Wade, and to the attestation of it by the 
 subscribing-witnesses in his presence; which fullj' an- 
 swers all that is required in any case we have yet seen. 
 See a variety of cases on this subject cited in 1 Stark. Ev. 
 338-342. 
 
 (224)
 
 NOVEMBER TERM, 1828. 192-193 
 
 The State, on the relation of Merrill, &c., v. M'Clane and Others. 
 
 Per Curiam. — The judgment is reversed with costs. 
 Cause remanded, &c. 
 Bro2vn, for the plaintiff. 
 Fletcher, for the defendant. 
 
 The State, on the reLation of Merrill, &c. v. M'Clane 
 and Others. 
 
 Sheriff's Bond— Action on— Relator. — An action on a sheriff's bond, 
 for not collecting militia fines due to the county seminaries, lies in the 
 name of the state on the relation of the treasurer, who is the trustee of 
 the fund. 
 Same— Pleading— Payment of Penalty.— It is unnecessary, in the 
 declaration on a sherifT's bond, to aver a non-payment of the 
 [*193] ^penalty. Aliter, in the case of penal bonds payable by one pri- 
 vate person to another. 
 
 APPEAL' from the Wayne Circuit Court. 
 
 Scott, J.— An action was instituted in the Wayne Cir- 
 cuit Court by the state of Indiana, on the relation of Sam- 
 uel Merrill, treasurer, for the use of the county seminaries, 
 against William M'Clane, sheriff of Wayne county, and 
 his sureties, on his official bond. The declaration charges 
 that certain lists of fines for non-performance of military 
 duty had been put into the hands of the defendant 
 M'Clane, as sheriff, for collection ; and that he had ne- 
 glected and refused to collect the same. The defendants 
 demurred generally to the declaration, and had judgment 
 in the Circuit Court. 
 
 It is alleged in support of the demurrer, that no person 
 appeared as a relator who was responsible for costs. This 
 objection to the declaration we think insufficient. The 
 fines mentioned in the declaration belong, when collected, 
 to the seminary fund: Samuel Merrill, as treasurer, is the 
 trustee of that fund; he is, therefore, the proper person 
 to appear as relator in such cases. It is a general rule 
 that the unsuccessful party pays costs, but there are some 
 Vol. IL— 15 (225)
 
 193-194 SUPREME COURT OF INDIANA. 
 
 The State on the relation of Merrill, &c., v. M'Clane and Others. 
 
 exceptions to that rule. It is a general rule, also, that, in 
 actions brought on official bonds, some person must ap- 
 pear as relator who has a beneficial interest in the suit, 
 and who is responsible for the costs, where costs are le- 
 gally demandable ; but it does not follow that no man 
 can appear as relator in cases where the law allows no 
 costs. 
 
 Another, and we presume the principal ground taken 
 in support of the demurrer, is, that the declaration con- 
 tains no averment of the non-payment of the penalty of 
 the bond by the defendants or either of them. This 
 ground is also untenable. In actions on common penal 
 bonds for the payment of money, or for the performance 
 of some specific duty to any private person, it is neces- 
 sary, in the declaration, to aver the non-payment of the 
 penalty as well as the breach of the condition ; and such 
 are all the forms; but a sheriff's official bond is made for 
 a different purpose and is subject to a different rule. Offi- 
 cial bonds are made to the state for the benefit of all per- 
 sons, who maybe aggrieved by the negligence or malcon- 
 duct of the officer. No man in the state is com- 
 [^'194] petent to receive the amount *of such bond ; no 
 payment to any man in the state would exonerate 
 the officer or his sureties; and it is therefore unnecessary 
 to aver, in the declaration, the non-payment of the pen- 
 alty. 
 
 For these reasons we think the demurrer ouffht to have 
 been overruled. 
 
 Per Curiam. — The judgment is reversed with costs. 
 Cause remanded, &c. 
 
 Rariden, for the appellant. 
 Dunn, for the appellees. 
 
 (226)
 
 NOVEMBER TERM, 1828. 194-195 
 
 Whalen v. Layman. 
 
 "Whalen r. Layman. 
 
 Marriage Contract — BRiiAcii— Seduction.— In an action for a breach of 
 promise of marriage, the plaintiff may introduce evidence of seduction (a). 
 
 ERROR to the Bartholomew Circuit Court. — Sarah 
 Layman brought an action of assumpsit against Thomas 
 Whalen for a breach of promise of marriage. The de- 
 fendant pleaded the general issue. Verdict and judg- 
 ment for the. plaintiff. 
 
 Scott, J. — In an action for a breach of promise of mar- 
 riage, the plaintiff offered proof of seduction. The de- 
 fendant objected ; but the Court overruled the objection, 
 and permitted the evidence to go to the jury; and there 
 was a verdict for the plaintiff below for 100 dollars. The 
 admission of evidence of seduction is complained of by 
 the plaintiff in error, and this is the only point in tho 
 case. There is no error here. The evidence was proper 
 for the consideration of the jury, and the Court acted 
 correctly in admitting it. 2 Stark. Ev. 942, n. 1 ; Paul v 
 Frazier, 3 Mass. R. 73; Boynton v. Kellogg, id. 189. The 
 contrary was decided in the case of Burks v. Shain, 'I 
 Bibb, 341 ; but that case is not supported by any othei* 
 decision within our knowledge. 
 
 Per Curiam. — The judgment is affirmed, with 5 per cent, 
 damages and costs. 
 
 Siveetser, for the plaintiff. 
 
 Wick and Herod, for the defendant. 
 
 ["^1951 *DoE, on the Demise of Sheets, v. Roe, on Appeal. 
 
 Lien of Judgment — When ExTrNGUiSHED. 
 
 THE lien of a judgment is not extinguished by the 
 execution of a replevin-bond, but continues until the 
 judgment is actually satisfied (1). 
 
 (a) 2 Ind. 402 ; overruled, 48 Id. 5fi2. 
 
 (227)
 
 105-196 SUPREME COURT OF IXDIAXA, 
 
 Crane and Wife v. Douglass. 
 
 (1) The statute now expressly enacts, — that "the entering of security hy 
 recognizance of record for the payment of any judgment, and the rei)lL'vy- 
 ing of an execution in the hands of an officer, and the giving of a hond for 
 the delivery of property on execution, shall neither nor all operate as a sat- 
 isfaction of the original judgment, upon which such proceedings shall or 
 may be had, so as to extinguish the lien created by such original judgment, 
 «pon the estate of any judgment-debtor." R. C. 1831, p. 24.S. 
 
 Crane and Wife v. Douglass. 
 
 ISLANDER — Justification — Malice. — Case by A. against B. for slanderous 
 words. Plea, that the defendant liad heard from C. the charges men- 
 tioned in the declaration, and that, at the time the defendant spoke the 
 words, he .stated that C. had told him so. Replication, that the defend- 
 ant had spoken and published the words falsely and maliciously with a 
 knowledge that they were false, and with the intent alleged in the decla- 
 ration. Held, on special demurrer, that the replication was good (a). 
 
 APPEAL from the Jackson Circuit Court. 
 Scott, J. — To an action on the case for slanderous 
 words, the defendant, after the general issue, pleaded 
 specially, that he had heard from one John Mapes the said 
 several charges in the declaration mentioned, and that, 
 at the several times of speaking the words, he had stated, 
 in the presence of the same j^ersons in whose hearing the 
 words were spoken, that John Mapes told him so. To 
 this plea the plaintiffs replied, that the defendant spoke 
 and published the words falsely and maliciously, of his 
 own wrongful and malicious disposition, and with a 
 knowledge of their being false, and with the purpose and 
 iTitent as in said declaration is suggested; and not iu the 
 maimer and with the intent and purpose as, in said plea, 
 by him is pleaded and suggested. There was a special 
 demurrer to this replication, and judgment for the de- 
 fendant. We think this was wrong. When a plea 
 [*196] consists merely of matter of excuse or *justifica- 
 tion, the general replication, de injuria sua jyvopria^ 
 is the proper answer, and puts the whole plea in issue. 
 
 (a) 5 Blkf. 574 ; 9 Ind. 500. : 
 
 (228)
 
 NOVEMBER TERM, 1828. 196 
 
 Crane and Wife v. Douglass. 
 
 Stark, on SI. 348, 1 Saund. 244, a. u. 7 (1) The fact that 
 the defendant heard the slander from another person, and 
 that he o-ave tlie name of the author at the time of repeat- 
 ino- it, does not, pei^ se, amount to an absolute justifica- 
 tion; it only raises a presumption, prima fade, in his 
 favor, that he did not circulate the slander maliciously; 
 which presumption may, notwithstanding, be rebutted by 
 testimony going to prove positive malice. Stark, on SI. 
 213, 397. The replication answers the plea according to 
 its legal effect and operation, and takes away all the mat- 
 ter of exculpation contained in it; and the defendant, by 
 the demurrer, admits that he uttered the slander ma- 
 liciously (2). 
 
 Per Curiam. — The judgment is reversed with costs. 
 Cause remanded, with directions to permit the defendant 
 to withdraw his demurrer, &c. 
 
 Nelson and Farnham, for the appellants. 
 
 Howk, for the appellee. 
 
 (1) The replication, de injuria, is spoken of as follows in a late valuable 
 treatise on pleading: " This species of traverse occurs in the replication, in 
 actions of trespass and trespass on the case ; but is not used in any other stage 
 of the pleading. In these actions, it is, in general, the proper form, wher- 
 ever the replication traverses the plea in bar. But to this, there are the 
 following large exceptions : "When the matter to be traversed consists either 
 of matter of title or interest, — or authority of law, — or authority in fact derived 
 from the opposite party, — or matter of record, — in any of these cases, the 
 replication de injuria is generally improper ; and the traverse should be in 
 the common form; that is, in the words of the allegation traversed." 
 Steph. on Plead. 187, 188. Crogate's case, 8 Co. 132, is cited for the above 
 doctrine, and is the leading case on the subject. The following is a deci- 
 sion of the Court of King's Bench, in 1832 : "An avowry in replevin stated 
 tliat the plaintiff was an inhabitant of a parish, and ratable to the relief 
 of the poor, in respect of his occupation of a tenement situate in the place 
 in which, \-c.; that a rate for the relief of the poor of the said parish was 
 duly made and published, in which the plaintiff was in respect of such oc- 
 cupation duly rated in the sum of 7/.; that he had notice of the rate, and 
 was required^ to pay, but refu.sed ; that he was duly summoned to a petty 
 sessions to show cause why he refused; that he appeared and showed no 
 cause, whereupon a warrant was duly made under the hands of two jus- 
 tices of the peace, directed to defendant, requiring him to make distress of 
 the phiintiff's goods and chattels; that the warrant was delivered to de- 
 fendant, under which he as collector justified taking the goods as a distress, 
 and prayed judgment and a return. Plea in bar, de injuria, &c. Special 
 demurrer, assignintr for cause, that the plea offered to put in issue several 
 distinct matters, and was pleaded as if the avciwry consisted merely in ex- 
 cuse of tlie taking and detaining, and not in justification and claim of right. 
 
 (229)
 
 196-197 SUPREME COURT OF INDIANA. 
 
 Crane and Wife v. Douglass. 
 
 Held, by Parke and Patteson, Js., Lord Tenterden C. J. dissentiente, 
 that the the plea in bar was good." Selby v. Bardons, 3 Barn. & Adol. 2. 
 [*197] *It appears by the last-cited case, 1st, that as the interest claimed 
 by the avowry did not exist previously to the seizure complained of, 
 that interest did not excuse the plea of de injuria; 2d, that the facts stated 
 in the avowry fall within the principle of a justification under any Court not 
 of record, where de injuria generally is good ; 3d, that as all the facts in the 
 avowry show but one cause of defence, the multiplicity of the matters put in is- 
 Bue was no objection to the plea of de injuria. The judgment in this case 
 was, in 1833, affirmed in the Exchequer Chamber. Bardons v. Selby, 9 
 Bing. 756. 
 
 (2) Northampton's case, 4th Resolution, 12 Co. 134, is the leading case 
 on this subject. That case, so far as it imports a general position, — that 
 the repetition of slander is always justifiable, if the party state at the time 
 of repeating the words the name of the author, — may be considered as over- 
 ruled in the English Courts. The following is a decision of the Court of 
 King's Bench in 1829 : " In an action for slander, for words spoken of the 
 plaintiff in his trade, importing a direct assertion made by the defendant, 
 that the plaintiff was insolvent, the defendant pleaded that one T. W. spoke 
 and published to the defendant the same words, and that the defendant, at 
 the time of speaking and publishing them, declared that he had heard and 
 been told the same from and by the said T. W. Held, upon demurrer, that 
 this plea was bad, — 1st, because it did not confess and avoid the charge 
 mentioned in the declaration, the words in the declaration importing an 
 unqualified assertion made by the defendant in the words stated in the 
 declaration, and the words used in the plea, importing that the defendant 
 mentioned the fact on the authority of T. W.; — 2d, because it did not 
 give the plaintiff any cause of action against T. W., inasmuch as it did not 
 allege that T. W. spoke the words falsely and maliciously; — 3d, because it 
 is not an answer to an action for oral slander for a defendant to show that 
 he heard it from another, and named the person at the time, without 
 showing that the defendant believed it to be true, and that he spoke the 
 words on a justifiable occasion." M'Pherson v. Danieh, 10 Barn. & Cress. 263. 
 
 The Court of Common Pleas in 1830, in speaking of the 4th Resolution 
 jn North ampstons's case, says, "But the resolution above referred to, which 
 has at all times been looked at with disapprobation, has, in the recent case of 
 M'Pherson v. Danieh, 10 B. & C. 263, been in effect overruled by the Court 
 of K. B.; and with the judgment of that d urt, upon that occasion, we en- 
 tirely concur. Ward v. Weeks, 7 Bing. 211. 
 
 END OF NOVEMBER TERM, 1828. 
 
 (230)
 
 [*198] * CASES 
 
 ARGUED AND DETERMINED 
 
 IN THE 
 
 SUPREME COURT OF JUDICATURE 
 
 OF THE 
 
 STATE OF INDIANA, 
 
 AT INDIANAPOLIS, MAY TERM, 1829, IN THE THIRTEENTH YEAB OF THE 
 
 STATE. 
 
 Elliott v. Armstrong. 
 
 Trust — Express — Implication. — A trust estate in real property, as separate 
 from the legal ownership, may either be created by an express declaration 
 of the trust ; or it may be raised upon certain facts by implication of 
 law (a). 
 
 Same — Evidence. — The statute of frauds requires all declarations of trust 
 in land to he proved by written testimony; but those trusts which arise 
 by the mere operation of law, are excepted out of the statute and may 
 be provided by parol evidence (6). 
 
 Same — Implication. — If A. purchases land with his ovmmoney, and the deed 
 be made to B., a trust results in favor of A., provided there be no circum- 
 stances in the case to rebut this presumption of the law. 
 
 Same — Remedy — Pleading — Parties. — To a bill in chancery by the gran- 
 tee of a cestui que trust against the trustee to obtain the legal title, the 
 grantor need not be a party either as complainant or defendant. 
 
 Contract — Consideration — Failure. — A. contracted to sell to B. certain 
 real estate, in consideration that B. should give up a note held by him 
 against A., and pay to A. a small sum of money. The giving up of the 
 note to A. was the principal part of the consideration. B. subsequently 
 
 (a) 3 Blkf. 39. (6) 4 Id. 539 ; 3ind.558 ; 7 Id. 277 ; 9 Id. 347. 
 
 (231)
 
 198-199 SUPREME COURT OF INDIANA. 
 
 Elliott V. Armstrong. 
 
 pledged the note to a third person, and absented himself from the coun- 
 try for 7 years, without paying any part of the purchase-money. Held, 
 that A. was discharged from the contract. 
 
 Trust — Conveyance by Cestui Que Trust. — The estate of a cestui que 
 trust may be sold and conveyed by him, as well as any other estate. 
 
 Deed — Warranty — Consideration. — A release by the grantee, of the 
 covenant of a warranty contained in a conveyance of real estate, does 
 not affect the validity of the conveyance. 
 
 Trustee — Sale of Trust. — The estate of a bare trustee is not subject to be 
 sold on an execution against him. 
 
 Judicial Sale — Void Execution. — The sale of real estate on void exe- 
 cution is a nullity, and vests no title in the purchaser. 
 
 [*199] -Trust — Evidence — Statements in Deed. — A complaint in chan- 
 cery may prove, by parol evidence, in order to show a resulting 
 trust, that the nurchase-money for real estate conveyed to another was 
 paid by himself, though the deed state that the money was paid by the 
 grantee, and the answer contain a denial of the trust. 
 
 Pledge — Ownership — Kedemption. — The absolute right of property and 
 the right of possession in a note which had been pledged for the pay- 
 ment of a debt, become, on payment of the debt, vested in the pledgor ; 
 and if the note be afterwards converted by the pledgee to his own use, he 
 is liable to the pledgor in an action of trover. 
 
 Sale — Market Overt. — In the sale of personal property, not in market 
 overt, the general rule is, that, though the purchase be bona fide for value, 
 the purchaser receives no better title than that of which the seller was 
 possessed. But bills of exchange and promissory notes are exceptions to 
 this rule ; when they are originally payable to bearer ; or when, in the 
 first instance, they are payable to order and afterwards by a blank en- 
 dorsement become payable to bearer ; they pass by delivery ; and the pur- 
 chaser who uses due caution, pays a valuable consideration, and takes 
 them in the common course of business, has a good title against all the 
 world, whether the seller had any title or not. A note payable to order, 
 however, can not pass without an endorsement either by the payee or by 
 some person in the payee's name and by his authority (c). 
 
 Trust — By Implication — Presumption. — The trust, in real estate conveyed 
 to A. resulting in favor of B. in consequence of his payment of the pur- 
 chase-money, is a kind of arbitrary implication raised, to stand until 
 some reasonable proof be brought to the contrary; and if the money was 
 paid for the express purpose of vesting in A. both the beneficial and legal 
 interest, no trust can result in favor of B, 
 
 Same — Eight of Creditors. — A. made a verbal contract for the purchase 
 of a town lot, and, during A.'s absence from the country, B. partly with 
 his own money but principally with A. '.s property, completed the contract 
 for A., and took the deed in the name and for the benefit of A. Held, 
 
 (c) 47Ind. 226; 45 /(/. 122 
 
 (232)
 
 MAY TERM, 1829. 199-200 
 
 Elliott V. Armstrong. 
 
 that A.'s subsequent ratification of B.'s acts made him liable to B. for 
 the amount paid for him by B. ; and also rendered the lot as A.'s prop- 
 erty liable, from the date of the deed, to a judgment against him in 
 favor of B. 
 
 APPEAL from the Dearborn Circuit Court. 
 
 Blackford, J. — This is a suit in chancery from the 
 Dearborn Circuit Court. Armstrong was the complain- 
 ant below, and Elliott the defendant. It is the case of a 
 cestui que trust, demanding a conveyance of real estate 
 from his trustee. 
 
 The bill states, that Vance and Dill, being indebted to 
 Elliott in the sum of 67 dollars and 56 cents for cooper's 
 Avork, gave him their due-bill, dated the 15th of March, 
 1805; and thereby acknowledged themselves indebted in 
 that amount to Elliott or order; that shortly afterwards, 
 Vance, for the purpose of paying the said note, proposed 
 to let Elliott have a town lot, numbered 171, in Lawrence- 
 burgh, for 75 dollars; Elliott paying the difference be- 
 tween the amount of the note and the price of the lot; 
 to which proposition Elliott seemed willing; and he was 
 to receive a bond for a deed, as soon as he gave up the 
 note and paid the said balance; that in 1807 
 [*200] Elliott left *the Western country, having first 
 transferred the note of Vance and Dill, by deliv- 
 ery, to Kuffin of Cincinnati, as collateral security for a 
 debt which Ruffin, as Elliott's surety, was bound for to 
 Vattier, and had afterwards to pay: and that Ruffin, hav- 
 ing been told by Elliott that Vance and Dill would pay 
 the note on sight, called upon Vance to his astonishment 
 f(U' payment; that when Elliott transferred the note he 
 made no arrangement, nor has he made any since, for 
 paying the consideration-money for the lot; nor did he 
 signify then, nor has he signified since, any intention or 
 wish to have the lot in the manner proposed by Vance, 
 or otherwise. 
 
 The bill further states that, in 1810. Horner, having 
 claims asrainst Elliott, sued out an attachment against him, 
 
 (283)
 
 200-201 SUPREME COURT OF INDIANA. 
 
 Elliott ('. Armstronc 
 
 which was levied on the said lot, numbered 171, under 
 the impression that it was Elliott's; and that, in 1811, 
 judgment was obtained on the attachment for upwards 
 of 100 dollars: which judgment is assigned to the com- 
 plainant; that on Horner's discovering that Vance had 
 still the legal and equitable title to the lot, Vance agreed 
 to let Horner have it at the same price that Elliott was 
 to pay ; that is, upon his getting up for Vance the said 
 note, which was then Ruffin's, and paying Vance the bal- 
 ance of the consideration-money ; and that with these 
 terms Horner complied ; that some doubts existed with 
 Vance as to whom the deed ought to be made ; whether 
 directly to Horner, he having paid the whole considera- 
 tion-money ; or to Elliott, so that Horner might sell the 
 lot by virtue of his judgment on the attachment; that 
 Vance, however, being advised so to do, made the deed 
 to Elliott, but delivered it to Horner for his sole benefit ; 
 Horner having paid the whole of the purchase-money; 
 that Horner then took out execution on his judgment 
 against Elliott, levied it upon the said lot, bought the 
 same for 75 dollars at the sheriff's sale, and received the 
 sheriff's deed; the said amount passing as a credit to 
 Elliott upon the judgment; that in 1812, Horner, by vir- 
 tue of the premises, took possession of the said lot, and 
 continued to occupy it and pay the taxes until 1816 ; when 
 the complainant, believing the lot to be Horner's in fee 
 simple, purchased the same for 300 dollars, received a 
 deed from him, took peaceable possession, and proceeded 
 to make valuable improvements. 
 
 The bill further states that Elliott returned to 
 [*201] the country in *1819 ; and, being informed of the 
 deed, and of the sale of the lot on execution, he 
 said that the deed to him had been made without author- 
 ity, and refused to take it out of the recorder's office; but 
 hearing soon after, that the sheriff's sale was probably er- 
 roneous, if not void, he took the deed, and in an action 
 of ejectment for the lot, commenced in 1819, recovered 
 
 (234)
 
 MAY TERM, 1829. 201-202 
 
 Elliott V. Armstrong. 
 
 judgment against the complainant in 1821, on the ground 
 that the sheriif' s sale to Horner was void; which judg- 
 ment was affirmed by this Court in 1822 ; that until after 
 tlie said judgment in ejectment, the complainant was ig- 
 norant of all the facts in relation to this his equitable de- 
 fence, growing out of the trust and payment of the con- 
 sideration-money; and that Elliott threatens that he will 
 take possession of the lot, and the improvements. 
 
 The prayer of the bill is, that the defendant be com- 
 pelled to convey the said lot to the complainant, and be 
 enjoined from proceeding at law, &c. 
 
 To this bill the defendant answers as follows : 
 
 That Vance and Dill, being indebted to the defendant 
 for cooper's work, gave him their note about the time 
 expressed in the bill, for about 70 dollars; that soon after, 
 he contracted with Vance to take the lot, numbered 171, 
 in satisfaction of the note, but took no bond or deed from 
 Vance for the lot, as the title was yet in the government; 
 that he does not recollect that the price of the lot ex- 
 ceeded the amount of the note, but that if it did, he paid 
 the difference in cooper's work; that immediately after 
 the purchase, the defendant took possession of the said 
 lot, occupied one of the two log buildings on it as a coop- 
 er's shop, and carried on the business of a cooper on the 
 lot from the time of the purchase in 1805, until February 
 or March, 1806, when he went to the Eastern states; 
 leaving a journeyman of his at work on the lot, and Per- 
 cival his general agent. 
 
 The answer also states, that when the defendant, in 
 1806, was about leaving the country, thinking some ac- 
 cident might happen to him before his return, and Ruffin 
 being his surety to Vattier for about 66 dollars, not due for 
 several months, he left the said note with Ruffin as a col- 
 lateral security, in case he should have to pay Vattier ; the 
 defendant supposing the lot might be had of Vance upon 
 l)roduction of the note; but he denies that he ever 
 [*202] sold the note to Ruffin, or told him that *Vance 
 
 (235)
 
 202 SUPREME COURT OF INDIANA. 
 
 Elliott V. Armstrong. 
 
 would pay it upon sight; that after Ruttin had paid 
 Vattier, and long before ho had given up tlie note 
 of Vance and Dill, Percival, the defendant's agent, placed 
 in Ruffin's hands a note beiong-ino: to the defendant, 
 against Brown for about 80 doHars, to be collected; with 
 instructions to Ruffin to pay himself out of the proceeds; 
 and that judgment was obtained on this note against 
 Brown, and the mone}^, to wit, 87 dollars and 50 cents, 
 paid to Ruilin, leaving a balance of about 20 dollars due 
 to the defendant. 
 
 The defendant admits, that there was something due 
 from him to Horner at the time of the attacbment, and 
 that judgment was thereon obtained as stated in the bill. 
 He states that he has been informed and believes that 
 Horner, so far from contracting with Vance for the said 
 lot, procured a deed to be made for it to the defendant, 
 not through mistake, but for the express purpose of sell- 
 ing it upon his said execution, as a mere equity could not 
 be sold. He denies that he was ever the trustee of Hor- 
 ner, so far as he can understand his rights. He admits 
 that the said lot was sold on execution, upon the said 
 judgment, at the time stated in the bill; and that Hor- 
 ner, the judgment-creditor, became the purchaser and 
 received the sheriff's deed. 
 
 The defendant admits that, on his return in 1819, he 
 accepted the deed which had been made to him by Vance, 
 and took it from the recorder. He admits having said, 
 that Horner had no right to have a deed executed, until 
 the defendant chose to take it from Vance. He also ad- 
 mits that, immediately on his return, he took the neces- 
 sary steps to regain possession of the lot, brought an 
 ejectment in the same 3'ear, and afterwards obtained a 
 judgment against the complainant as stated in his bill. 
 He denies all fraud, &c. 
 
 In addition to the answer, the defendant pleaded in 
 bar, a release made by the complainant to Horner, of the 
 
 (28.^)
 
 MAY TERM, 1829. 202-203 
 
 Elliott ('. Armstrong. 
 
 covena)it of warrant}', contained in Horner's conveyance 
 of the premises to the complainant. 
 
 There is a general replication to the answer. To the 
 plea no reply was required. 
 
 The material facts, presented by the exhibits and proofs 
 contained in the record of this cause, are believed to be 
 
 the following: 
 [*203] *Vance and Dill, inhabitants of Lawrenceburgh, 
 being indebted to Elliott, the defendant, who re- 
 sided in the same place, for cooper's work, gave him their 
 note, dated the 15th of March, 1805, for 67 dollars and 56 
 cents, that being the amount they owed him. This note 
 reads as follows: " Due Samuel Elliott or order, 67 dollars 
 and 56 cents, for value received. March 15th, 1805." 
 
 At some time during the same year, 1805, a conversa- 
 tion took place in Lawrenceburgh between Vance and 
 Elliott, respecting the sale by the former to the latter of a 
 lot in that town, numbered 171; the same which is now 
 the subject of dispute. In tliat conversation, Vance pro- 
 posed to sell the lot to Elliott, and Elliott agreed to take 
 it of him, at the price of 75 dollars. This was only a 
 verbal contract, and was not to be considered complete, 
 until Elliott should give up the note of Vance and Dill 
 of 67 dollars and 56 cents, and pay to Vance the differ- 
 ence between the amount of the note and the price of the 
 lot. Immediately after this contract, and in consequence 
 of it, Elliott took possession of the lot, and occupied a 
 cabin on it as a cooper's shop, until some time in the year 
 1806, when he left Lawrenceburgh and went to New Hamp- 
 shire; leaving some property on the lot, and a journey- 
 man at work in the shop. 
 
 Previously to his going away, Elliott had become in- 
 debted to Vattier, oi' Cincinnati, in about 66 dollars, and 
 had given to him a note for the amount payable at a 
 future period, with RulBn, of Cincinnati, as his surety. 
 When Ruffin heard that Elliott was about to leave the 
 country, he requested from him security against his Ha- 
 
 (237)
 
 203-204 SUPKEME COURT OF INDIANA. 
 
 Elliott V. Armstrong. 
 
 liility to Vattier. Elliott, accoiTlingl}', placed in Ruffin's 
 hands the note of Vance and Dill, as a collateral security 
 and indemnity against the claims of Vattier: but he did 
 not endorse it. This note Ruffin was to collect from 
 V^ance and Dill, in case he should be obliged to pay the 
 debt due to Vattier, which would be due in a few months. 
 
 Elliott, when he went away, left some business unset- 
 tled, lie owed some money, and there were some debts 
 due to him. He appointed Percival, of Lawrenceburgh, 
 liis general agent; and left with him, among other claims, 
 a note against Brown, of Hamilton county, Ohio, for 87 
 dollars and 50 cents, payable in hogshead staves to be de- 
 livered at Lawrenceburgh, one-half in June, and the 
 other half in September, 1806. In the opinion 
 [-''204] *of his agent, Elliott left sufficient property to pay 
 his debts, if his business had been properly man- 
 aged. The principal demand against him, beside that of 
 Vattier, was one in favor of Horner, of Lawrenceburgh, 
 for about 100 dollars. 
 
 Some time after Elliott's departure, Ruffin, as his surety, 
 having been obliged to pay Vattier, called upon Vance 
 for the payment of the note of Vance and Dill, which 
 Elliott had left with Ruffin as a collateral security against 
 the claim of Vattier. Vance was much surprised at this 
 circumstance; and informed Ruffin, that he had made a 
 verbal agreement with Elliott for the sale of a lot in Law- 
 renceburgh, and that he expected to pay the note in that 
 way. Ruffin, hearing this, expressed his dissatisfaction 
 with Elliott's conduct, and replied that he would let the 
 matter rest for the present. After this, to wit, in 1807, 
 Ruffin inquired of Percival as to wdiat had become of El- 
 liott, told liim that he had paid the A'^attier debt, and ex- 
 pressed some uneasiness about it. He also told Percival, 
 that he had presented to Vance the note which Elliott 
 liad placed in his hands, but that Vance said he would 
 plead the contract for the lot in bar of any suit upon the 
 note. Ruffin, at the same time, inquired of Percival, if 
 
 (238)
 
 MAY TERM, 1829. 204:-205 
 
 Elliott I'. Armstrong. 
 
 Elliott had not left any property which he could attach 
 for the amount he had paid to Vattier. Percival, in re- 
 ply, informed him of his having the note against Brown 
 in t\ivor of Elliott; wdiich note he gave to Rnfhn, and 
 told him he could make his money out of that. Percival 
 took a receipt from Ruihn for this note against Brown, 
 and shortly afte'-wards wrote to Elliott, informing him of 
 the circumstance. 
 
 In the December fcdlowing, judgment was obtained at 
 Cincinnati for 90 dollars and 12 cents, besides costs, in the 
 name of Elliott against Brown, on the note thus delivered 
 to Ruffin by Percival, the agent of Elliott. St. Clair was 
 the attorney on record. This judgment, with the interest 
 and costs, was collected on various executions issued dur- 
 ing the years 1808, 1809, 1810, and 1811. The deputy 
 sheriff states that, in 1810, the sheriff left with him sun- 
 dry receipts on these executions; one by Thomas, wdiich 
 he thinks was signed by him as attorney, for 50 dollars 
 and 50 cents; and two others by liuffin, one for 5 dollars, 
 the other for 20 dollars, signed by him, the witness be- 
 lieves, as agent for the plaintiff. The sherift' instructed 
 
 his deputy, in 1810, to pay any money he should 
 [*205] collect on the *execution in this case, then in his 
 
 hands, to Ruffin ; and it appears that the deputy 
 applied to Ruflin for instructions relative to one of the 
 executions, and was advised by him what to do. No in- 
 structions were ever given to the deputy, in this case, 
 except by the sheriff and Rufiin. The two following re- 
 ceipts were given by Ruffin for money received by him 
 on this debt against Brown: "Samuel Elliott y. Samuel 
 Browm. Execution to December term, 1810. Cincinnati, 
 October 12th, 1810, lieceived of Aaron Goforth, late 
 sheriff of Hamilton county, the sum of 82 dollars in part 
 of the above execution ; 7 dollars of which were received 
 of defendant, as per receipt given defendant. Signed, 
 Wm. Ruffin." "Received, Cincinnati, 10th December, 
 1812, of Mr. Samuel Brown, the sum of 9 dollars, on ac- 
 
 (239)
 
 205-206 SUPREME COURT OF INDIAXA. 
 
 Elliott V. Armstrong. 
 
 count of the claim of Samuel Elliott against said Brown. 
 Signed, Wm. RutRn." 
 
 In 1810, Elliott not having retnrned, Horner deter- 
 mined to collect by law, if possible, the money due to him 
 from Elliott. Supposing the lot, numbered 171, in Law- 
 renceburgh, for which Elliott had formerly contracted 
 with Vance, did really belong to Elliott, he sued out an 
 attachment against him ; and the same was accordingly 
 "levied upon that lot as Elliott's property. Ln June, 1811, 
 judgment was obtained against Elliott on this attach- 
 ment, in favor of Horner, for about 100 dollars. The lot 
 however, which had been attached as Elliott's, was not 
 sold; Horner having discovered, on inquiry of Vance, 
 that Elliott had no title to it in law or equity; that his 
 contract with Vance for the lot was a mere verbal one; 
 that Elliott had not complied with the terms on his part; 
 and that Vance did not consider him as having any right 
 to the property whatever. Horner then consulted wnth 
 his attorneys at law, as to the best means of securing his 
 debt. The result of this consultation was, that as the lot 
 had increased in value since EHiott's agreement for it, and 
 would probablj' continue to do so, Horner should perfect 
 EllioWs title to it, if Vance was willing, by complying 
 with the terms which Elliott had agreed to perform ; and 
 after the title should be vested in Elliott, that Horner 
 should lev}' his execution on the lot as Elliott's property, 
 and become himself the purchaser at the sheriff's sale. 
 Accordingly, Horner, with one of his attorneys, went to 
 Vance and inquired of him whether he would be willing 
 to make the title for the lot to Elliott, if Horner 
 [*206] ^should pay up and fulfill Elliott's contract. To 
 this Vance agreed. Horner then obtained from 
 Ruffin, at Cincinnati, for 50 dollars, the note against Vance 
 and Dill, b}' delicery merel}', without indorsement. This 
 note Horner gave up to Vance, and paid him the differ- 
 ence between the amount of the note mid the original 
 price of the lot; and Vance, immediatelv, to wit, on the 
 
 (210)
 
 MAY TERM, 1829. 206-207 
 
 Elliott I'. Armstrong. 
 
 lOth of March, 1812, executed the deed for the lot to El- 
 liott at Horner's request. As soon as this was done, Hor- 
 ner had the lot executed and sold as Elliott's property, pur- 
 chased it himself at the sheriff's sale for 75 dollars, which 
 sum was credited on his execution against Elliott, and 
 then took possession of the premises. The object of this 
 transaction was to accommodate and benefit Horner, and 
 to enable Vance to get up his note. 
 
 In 1816, Armstrong, the complainant, purchased the lot 
 from Horner for 300 dollars, entered into possession, and 
 made valuable improvements; and, in 1819, having paid 
 the consideration-money, he received from Horner a gen- 
 eral warranty deed for the property. 
 
 Elliott, who had been absent from the country about 
 thirteen years, returned to Lawrenceburgh in 1819, about 
 the time of the execution of the deed by Horner to Arm- 
 strong, i^ot long after Elliott's return, the recorder called 
 on him with flie deed which had been made to him by 
 Vance in his absence, and demanded the recording fee. 
 Elliott at first refused to pay and take the deed, but on 
 being sued by the recorder, he paid the fee before the 
 trial, and received the deed. He soon afterwards, to wit, 
 in 1819, brought an action of ejectment against Armstrong 
 for the lot; and, in 1821, recovered a judgment against 
 him, on the ground that the execution against Elliott, 
 under which Horner had purchased the premises, was ut- 
 terly void, and the sheriff's sale a nullity. 
 
 In 1823, Armstrong, for a valuable consideration, re- 
 leased Horner from the covenant of warranty, contained 
 in Horner's conveyance to him of the preinises in dispute. 
 This statement, we believe, contains all the material 
 testimony given in the cause. The decree of the Circuit 
 Court is in favor of the complainant, requiring the de- 
 fendant to convey to him the legal title to the lot, 
 [*207] and enjoining him from ^proceeding any further 
 at law, &c. The defendant appeals to this Court. 
 The complainant in this suit admits, that the legal title 
 Vol. II.— 16 (241)
 
 207 SUPREME COURT OF IXDIAXA. 
 
 Elliott V. Armstrong. 
 
 to the lot which he clainir? is vested in the defendant. 
 But it is contended that tlie beneficial property is in the 
 complainant; and that the defendant is bound to convey 
 to him the legal estate. It is not to be questioned, but 
 that the quality of separability of the use from the legal 
 title, as contended for by the complainant, does exist in 
 real property. One man may certainly have the legal 
 estate merely as a trustee, whilst another, called the cestui 
 que trust, has a right, in equity, to demand the rents and 
 profits and a conveyance of the legal title. This trust- 
 estate in real property, as separate from the legal owner- 
 ship, may either be created by an express declaration of 
 the trust; or it may be raised upon certain facts by im- 
 plication of law. The statute of frauds requires all decla- 
 rations of trust in land to be proved by written testimony; 
 but those trusts which arise by the mere operation of 
 law, are excepted out of the statute, and may be proved 
 by parol evidence. The complainant here does not rely 
 upon any express declaration of trust in favor of his 
 grantor. He goes upon the ground, that Horner paid 
 the consideration for the lot; and that, by virtue of such 
 payment, although the deed was made to Elliott, a trust 
 resulted to Horner by implication of law. And there is 
 no doubt but that the law upon this subject is, that if A. 
 purchased land with his own money, and the deed be made 
 to B., a trust results in favor of A.; provided there be no 
 circumstances in the case to rebut this presumption of 
 the law. 
 
 Some of the points taken by the defendant, in oppo- 
 sition to the complainant's demand, are very easily dis- 
 posed of. He contends that Horner should have been a 
 party, either complainant or defendant. The^ suit is 
 by Armstrong, the grantee of Horner, against Elliott. 
 There existed no interest of Horner, therefore he needed 
 not to be a party complainant; and, as there was nothing 
 demanded of him, there was no occasion for his being a 
 partv defendant. Kerr v. Watts, 6 Wheat. 550, 559. In 
 
 (242)
 
 MAY TERM, 1829. 207-20? 
 
 Elliott V. Armstrong. 
 
 the case where an assignee of a mortgage brings a bill of 
 foreclosure, it is held that the mortgagee need not be a 
 party. Whitney v. M' Kinney, 7 Johns. Ch. Rep. 144, 147. 
 
 We think there is nothing in this objection. 
 [*208] The ground relied on *by the defendant, that his 
 
 parol contract with Yance gave him an equitable 
 estate, and that Horner was a purchaser with notice, has 
 no foundation. If that contract of 1805 was originally 
 binding on the vendor, we have no idea that it could re- 
 main so, after the defendant had pledged the note at Cin- 
 cinnati, which was to have been given up as the greater 
 part of the consideration for the lot; and after he had 
 absented himself from the country for 7 years, without 
 having paid or ofiered to pay any part of the consider- 
 ation. 1 Maddock^s Ch. 328. It is contended that, as- 
 suming Horner to be the cest id que trust, he could not sell 
 the property to the complainant as set out in the bill. 
 The law, however, is perfectly settled, that the estate of 
 a cestui que trust may be conveyed as well as any other. 
 1 Cruise, 493. The defendant relies upon the release by 
 the complainant to Horner. That release, however, is 
 merely of the covenant of warranty in Horner's deed to 
 the complainant, and leaves the case just where it would 
 have been, had the deed originally contained no covenant 
 of warranty. The conveyance of the estate is as valid 
 without that covenant as with it. Another ground taken 
 by the defendant is, that when Horner purchased the lot 
 at the sheriff's sale under his judgment against Elliott, 
 his trust-estate, if he had any, was merged in the legal 
 title thus acquired. The answer to this objection is, first, 
 that if Elliott was a bare trustee, the estate was not sub- 
 ject to the execution against him; 1 Maddock's Ch. 363; 
 1 Craise, 542 ; secondly, that the sale was at any rate a 
 nullity, and vested no property in the purchaser, the ex- 
 ecution being void. Such was the decision of this Court, 
 in a case between these same parties, at the November 
 term, 1822. Horner therefore acquired, under the sher- 
 
 (243)
 
 208-209 SUPREME COURT OF INDIANA. 
 
 Elliott f. Armstrong. 
 
 iti's sale, no legal title bj' which his equitable right, if he 
 had any, could have been merged. 
 
 These comparatively unimportant matters, introduced 
 into the argument by the defendant, being thus disposed 
 of, we come now to an examination of the substantial 
 merits of the cause. 
 
 There are two principal questions involved in this suit: 
 First, did Horner pay the consideration, or any part of it, 
 for the lot in dispute, out of his own money? And if so, 
 then, secondly, is the presumption of law, thus raised in 
 favor of Horner, destroyed by any rebutting evidence on 
 the part of the defendant? 
 
 Previously to our examining these questions, it 
 [*209] may be *proper to observe, that some of the de- 
 positions contain the general expressions, that 
 Horner paid the whole of the consideration-money, and 
 that the deed was made to Elliott for the sole benefit of 
 Horner. If these general expressions stood alone, they 
 would probably settle the case, at once, in the complain- 
 ant's favor; notwithstanding the deed states upon its face 
 that the consideration was paid by the defendant, and the 
 answer denies the trust. Boyd v. 3I'Lean, 1 Johns. Ch. 
 Rep. 582, 586. These expressions, however, are explained 
 and modified in other parts of the same depositions. We 
 iind that when these witnesses say that Horner paid the 
 consideration-money, they mean that he paid it by get- 
 ting the note against Vance and Dill from Rufhn, deliver- 
 ing it up to Vance, and paying the difference between 
 the note and the price of the lot. And when they say, 
 that the deed was made for Horner's benefit, their mean- 
 ing is, that the absolute title was vested in Elliott to ben- 
 efit Horner, by thus rendering the lot subject to his judg- 
 ment against Elliott. 
 
 The first subject for our inquiry' is whether Horner 
 paid out of his own money the consideration for the lot? 
 
 With respect to this point, the testimony is clear that 
 a promissorv note, given many years before bv Vance and 
 
 (244)
 
 MAY TERM, 1829. 209-210 
 
 Elliott V. Armstrong. 
 
 Bill, and payable to Elliott or order, was delivered up to 
 Vance by Horner, as the principal part of the considera- 
 tion for the lot. But it is a ^^reat matter of dispute be- 
 tween the parties, as to whom that note properly be- 
 longed at the time it was so delivered up to Vance; to 
 wit, in October, 1812. The complainant contends that it 
 was the property of Horner. It is in proof that, in 1806, 
 this note against Vance and Dill was delivered by Elliott 
 to Ruffin, without endorsement, as a collateral security; 
 to be collected by him, in case he should have to pay the 
 debt of about 66 dollars due to Vattier. This was certain- 
 ly no sale of the note to Ruffin. It was a mere pledge 
 for the security of a debt; and the general property of 
 the note, at all events, continued in Elliott. By this 
 pledge, Ruffin, at most, had but the special property and 
 the right of possession, which belonged to a bailee; and 
 even after he had paid Vattier, probably in 1807, he was 
 only entitled to collect the note in Elliott's name, and pay 
 himself for his advance to Vattier, out of the proceeds. 
 
 In 1812, this pledged note was sold by Ruffin, 
 [*210] the pledgee, to *Horner; and it is upon this sale 
 alone that Horner's right to the note, when he de- 
 livered it to Vance, is founded. That Ruffin had no power 
 to sell this note in 1812, is contended for by the defend- 
 ant; on the ground that Ruffin had been, a year and a 
 half before, repaid the debt for which the note was 
 pledged. It is evident from Ruffin's calling upon Vance 
 in 1807 for payment, and from his inquiries of Percival 
 in the saine year, if Elliott had left any property that he 
 could attach, that Ruffin was determined to be repaid 
 ver}" soon, if possible. We have the positive testimony 
 of Percival, the defendant's agent, that when thus inquired 
 of by Ruffin, to wit, in 1807, he gave him the note against 
 Brown, which was for 87 dollars and 50 cents, and told 
 him to make his money out of that. It is proved that 
 afterwards, in the same year, a judgment on this note 
 against Brown was obtained in Elliott's name at Cincin- 
 
 (245)
 
 210-211 SUPREME COURT OF INDIANA. 
 
 Elliott r. Armstrong. 
 
 nati, where Riiffin lived; that when the sheriti' gave to 
 his deputy an execution in the case, he directed him to 
 pay over to Rufiin any money he might collect on it ; that 
 the deputy sheriff asked and received instructions in this 
 business from Ruffin ; and that the w^hole amount of this 
 judgment against Brown was finally collected on execu- 
 tion, during Elliott's absence from the country. We have 
 also in evidence the receipt itself to the sheriff for 82 dol- 
 lars signed by Rulfin, dated long before his sale to Hor- 
 ner of the pledged note, to wit, the 12th of October, 1810, 
 and expressed to be in part payment of the execution in 
 this case. These are strong proofs of the re-payment to 
 Ruffin, in the manner and at the time alleged by the de- 
 fendant. 
 
 The complainant has attempted to weaken the force of 
 this testimony, by the deputy sheriff's statement, that he 
 had seen a receipt for 50 dollars and 50 cents in the case 
 against Brown, given by Thomas, he thinks, as attorney; 
 and by Horner's deposition, that Ruffin had told him that 
 what money he had received on the judgment against 
 Brown, he had paid to Percival. These circumstances 
 amount to nothing. The receipt of Thomas was not pro- 
 duced, nor was its absence accounted for. Besides Thomas' 
 authority does not appear, St. Clair being the only attor- 
 ney on record. As to what Horner says, relative to Ruf- 
 fin's telling him that he had paid to Percival the money 
 
 due from Brown, it is mere hearsay testimony. 
 [*211] Ruffin himself was *a witness in the cause; and 
 
 if he had not received or retained the money, for 
 which he receipted to the sheriff", he was the proper per- 
 son to be called on to explain the transaction. Percival, 
 too, was a witness, and he could have told whether Ruffin 
 had ever paid to him this money. The complainant, how- 
 ever, did not think proper to ask either Ruffin or Per- 
 cival a single question on this subject; and he must con- 
 sequently submit to the presumption against his second- 
 
 (246)
 
 MAY TERM, 1829. 211-212 
 
 Elliott V. Armstrong. 
 
 ary evidence, Avhich the want of that inquiry necessarily 
 creates. 
 
 The defendant's evidence, therefore, on this part of the 
 case, stands nnimpeached, and settles the fact, that in 1810 
 Ruffin received 82 dollars from Elliott's judgment against 
 Brown. That amount was at least equal to Rufiins 
 claim for having paid the debt due to Yattier ; which, m 
 1807, did not exceed 66 dollars. It follows, that in 1810 
 the debt was paid to Ruffin, to secure which the note 
 against Yance and Dill had been pledged to him. That 
 payment to Ruffin put an end to his control over, the 
 pledged note. From the time of that payment, the absolute 
 right of property and the right of possession in the note, 
 were vested in Elliott. The consequence is inevitable, — 
 the sale of the note in 1812, about a year and a-half after the 
 payment of the debt for which it was pledged, was made 
 by Ruffin to Horner without authority, and this unlawful 
 'Conversion of Elliott's property subjected Ruffin to an 
 action of trover. 
 
 Perhaps, however, it may be said that Horner, by the 
 purchase from Ruffin for a valuable consideration, became 
 the owner of the note, although Ruffin, at the time had 
 no property in it, nor any authority to sell it. In the sale 
 of personal property, not in market overt, the general 
 rule is, that though the purchase be bojia fide and for 
 value, the purchaser can receive no better title than that 
 of which the seller was possessed; and must, at all times 
 yield to the claim of the rightful owner. To this general 
 rule, how^ever, there is an exception in favor of negotiable 
 instruments, such as bills of exchange and promissory 
 notes. When these are originally made payable to bearer ; 
 or when, in the first instance, they are payable to order 
 and afterwards by a blank endorsement become payable 
 to bearer; they pass by <^f /if ^r?/; and the purchaser of them 
 who uses due caution, pays a valuable consideration, and 
 takes them in the course of business, has a good 
 [*212] title against all the '''world, whether the seller had 
 
 (247)
 
 212 SUPREME COURT OF INDIANA. 
 
 Elliott r. Armstrong. 
 
 any title or not. Wookey v. Pole, 4 Barn. & Aid. 6. 
 Upon looking at this note, which was pledged to 
 Ruffin and sold by him to Horner, we find at once, that 
 it is not that kind of negotiable instrument which comes 
 within the exception in favor of commerce. It was paya- 
 ble only to Elliott or order, and Elliott had not endorsed 
 it, nor had any person for him ; consequently it was not 
 payable to bearer, and could not, like a bank note, be 
 transferred by a bare delivery. Whether the property in 
 this note could pass without endorsement, under any cir- 
 cumstances, need not be considered. Supposing it could, 
 the transfer in such case must be governed, not by com- 
 mercial law, but by the rules which regulate the sale of 
 ordinary goods, out of " market overt. Horner could re- 
 ceive no better title than Ruffin had. The buyer was not 
 liable to any imposition in this case, the want of Elliott's 
 endorsement being sufficient notice that the note was still 
 his; and when Horner bought it, he did so at the risk of 
 Ruffin's having no authority to sell it. This would be 
 the case, even if Ruffin had endorsed the note in Elliott's 
 name, having no authority to do so; because the law is, 
 that if one man acts by the authority of another, those 
 dealing with him must look to his authority. De Douch- 
 out V. Goldsmid, 5 Ves. Jun. 211. This part of our case is 
 explained by the following authority : Maclish being 
 owner of a ship, let it to the commissioners of the navy; 
 and by a letter of attorney empowered Todd to receive 
 the profits, give discharges, and do everything relative to 
 the premises which Maclish could do. Todd received 
 from the commissioners of the navy, a navy bill for 1200 
 pounds payable to Maclish or his assigns; and sold it to 
 Hawkes for a fair price ; and Hawkes for a fair price sold it 
 to Ekins. Maclish afterwardsbrought an action of trover 
 against Ekins and recovered. The Court observed that it 
 liad been truly said, that the property in a bank note, if 
 delivered in the course of trade for valuable consideration, 
 does pass by delivery; but that it is as true, that the 
 
 (248)
 
 MAY TERM, 1829. 212-213 
 
 Elliott t'. Armstrong. 
 
 property in a navy bill can not pass without assignment; 
 as Todd had no power to assign the bill, the maxim caveat 
 emptor applied to the case. Maclish v. Ekins, Sayer's Rep. 
 73. 
 
 With respect to this part of the case, therefore, it ap- 
 pears to us, that at the time of the sale of the note against 
 Vance and Dill by Ruffin to Horner, to wit, in 
 [*213] 1812, the debt had been *paid for which the note 
 was pledged, and that the right both of property 
 and of possession in it was then in Elliott; that Ruffin 
 had no authority to dispose of the note ; and that as it 
 was payable only to order, and was not endorsed, Horner 
 acquired no property in it, although he paid for it a valu- 
 able consideration. 
 
 As the delivering up of this note to Vance, formed the 
 greater part of the consideration for the lot in dispute ; 
 and as the payment of that consideration by Horner out 
 of his own money, is the foundation of the complainant's 
 bill, this decision — that Horner never had any j^'t'operty in 
 that note — goes very far towards settling the whole of this 
 case. 
 
 The trifling balance of the consideration for the lot, was 
 paid by Horner out of his own money. AVhether the 
 smallness of this sum is any objection to the complainant's 
 following it into the lot, if he be otherwise entitled, we 
 shall not stop to inquire ; but we will take it for granted 
 that it is no objection. This introduces the second prin- 
 cipal subject of inquiry, which is, whether the presumjyfion 
 of a trust to Horner, arising from this payment, is rebutted 
 by the defendant's evidence? 
 
 From an examination of the testimony, it appears to iis 
 that the object of Horner, in paying this little balance to 
 Vance, was not to make a purchase from him of a bene- 
 ticial estate in the lot in proportion to that amount. It 
 seems to have been paid for Elliott by Horner, merely to 
 induce Vance to perform his contract with Elliott b}' con- 
 veying to him the absolute title, and thus to cause the lot 
 
 (249)
 
 213-214 SUPREME COURT OF INDIANA. 
 
 Elliott r. Armstrong. 
 
 to be made subject to Horner's judgment against Elliott. 
 The following extract from the deposition of Horner's at- 
 torney very clearly explains this part of the case ; though 
 the occasion, really, seems not to require so particular ref- 
 erence to it: 
 
 "In 1810, or 1811, after this deponent had commenced 
 the practice of law, he, together with Symmes, was em- 
 ployed by Horner to sue out and conduct an attachment 
 against Elliott, either as an absconding or non-resident 
 debtor; and they prosecuted the suit to final judgment, 
 which was obtained in June, 1811. In March, 1812, 
 Symmes, Horner, and the deponent, consulted together on 
 the best probable method of securing Horner's debt ; and 
 
 inasmuch as lots in Lawrenceburgh had then con- 
 [*214] siderably increased in value, and might still *in- 
 
 crease, they concluded Horner's best method would 
 be to perfect Elliott's title to the lot, if Vance would con- 
 sent, and then to execute and sell, and become the pur- 
 chaser. Horner, the deponent, and perhaps Symmes, 
 went to Vance, and inquired of him whether, if Horner 
 paid up and fulfilled Elliott's contract, he, Vance, would 
 make the title to Elliott ? After some conversation with 
 Vance, and perhaps some persuasion from the deponent, 
 Vance consented, more especially as the deponent urged 
 the matter as the only method likely to secure Horner. 
 Horner then went to Cincinnati, and purchased the note 
 against Vance and Dill (as deponent supposed, because 
 he returned from thence with the note in his possession). 
 He delivered the note to Vance, and paid the residue of 
 the purchase-money for the lot, which was in all perhaps- 
 75 dollars. We then executed and sold the lot as Elliott's 
 property, to wit, lot number 171, in the town of Law- 
 renceburgh, and Horner became the purchaser for 75 dol- 
 lars, as the deponent believes." 
 
 This deposition certainly shows that here was no new 
 bargain and sale between Vance and Horner. It was the 
 merely carrying into efi:ect the old contract between Vance 
 
 (250)
 
 MAY TER:sr, 1829. 214-215 
 
 Elliott V. Armstrong. 
 
 and Elliott. This, it is true, was to be for Horner's benefit ; 
 not, however, by vesting in him the beneficial estate in 
 any part of the lot, because the performance of Elliott's 
 contract could not do that; but it Avasto be for his benefit, 
 by vesting in Elliott the beneficial as well as the legal inter- 
 est and so rendering the lot subject to Horner's judg- 
 ment against him. No words could make the matter 
 plainer than this deposition does. The resulting trust, 
 contended for by the complainant, is, in the language of 
 Lord Mansfield, a kind of arbitrary implication raised, to 
 stand until some reasonable proof brought to the contra- 
 ry. Sugd. 418. Supposing that the payment of the small 
 balance of the consideration, had it stood alone, would 
 have raised a ■presumption, that the deed, though made to 
 Elliott, gave a beneficial estate in the lot to Horner in 
 proportion to that small sum ; yet, undoubtedly, this mere 
 presumption of law must yield to the truth of the case, 
 when it is shown by positive testimony, that the object 
 of Horner in making this payment was, in direct oppo- 
 sition to such a presumption, to cause the beneficial estate 
 to be vested in Elliott conformably to the face of the 
 deed ; and when it is shown, too, that after the exe- 
 [*215] cution of the deed, *Horner treated the lot as Elli- 
 ott's property, by having his execution levied upon 
 it as such, and buying it himself at the sheriff's sale. 
 
 This management of Elliott's business for him in his 
 absence, by Horner, was ratified by Elliott soon after his 
 return to the country; and the special benefit which had 
 been contemplated by Horner, was thus confirmed to him. 
 Upon Elliott's acceptance of the deed, the case stood pre- 
 cisely as if his contract with Vance had been completed 
 by himself in person, instead of by Horner for him. By 
 this recognition, Elliott became accountable to Horner 
 for the balance of the consideration over and above the 
 note, which had been advanced for him ; and the liability 
 of the lot, as Elliott's propertv, to Horner's judgment 
 
 (251)
 
 215-216 SUPREME COURT OF INDIANA. 
 
 Elliott r. Armstrong. 
 
 against him. from the date of the deed, was thereby es- 
 tablished. 
 
 It appears to us, therefore, that the facts accompanying 
 the small advance of money by Horner for Elliott, repel 
 the idea of any implied trust jiro tanio, in favor of Hor- 
 ner, on account of that paj'ment. Indeed, it seems per- 
 fectly clear, that it was 8 or 10 years, at least, after Vance's 
 deed to Elliott, and when the sheriff's sale to Horner had 
 been determined to be void, and after Elliott had recov- 
 ered the premises in the action of ejectment, that the 
 complainant, looking around for a plank in the shipwreck, 
 was the^rs^ to think of the resulting trust set out in his 
 bill. 
 
 It may be supposed, perhaps, that we should notice, be- 
 fore we conclude, tlie suggestions of mistake and fraud, 
 made by the complainant for the purpose of showing that 
 the defendant .has no right to resist the claim of a result- 
 ing trust set up in the bill. It is true, that Horner was 
 under a mistake in supposing the lotto be Elliott's, when 
 he levied his attachment; but it is also true, that before 
 he had thought of completing Elliott's contract, that mis- 
 take was rectified, since he had discovered before that 
 time, as he states himself, and as the bill states, that El- 
 liott had no title at law or in equit3\ As to the idea of 
 Horner's mistake of judgment in not causing the deed to 
 be made to himself, instead of to Elliott, we have nothing 
 to do with that. We will observe, however, that as the 
 note was Elliott's at the time, the policy of taking the 
 
 deed to Horner was not so clear as the com];)lain- 
 [*216] ant imagines. It is further contended that ^there 
 
 is a fraudulent concealment, by the defendant or 
 his agent, of the claim now set up against the alleged 
 trust. We have not been able, however, to discover any 
 fraud in the case. The defendant was absent himself, and 
 knew nothing of the proceedings. If his agent saw the 
 complainant buying the lot, and making improvements 
 on it, he might honestly think, as the complainant did, 
 
 (252)
 
 MAY TEHM, 1829. 216 
 
 Washburn and Another v. Payne. 
 
 that the sherifl"'s sale to Horner was valid, and that El- 
 liott had no further claim. There is no proof that the 
 discovery of the execution's being void was made until 
 after Elliott's return and acceptance of the deed in 1819, 
 nor indeed at an}' time before the commencement of his 
 action of ejectment. 
 
 From the general view which we have now taken of 
 this cause, we have come to the conclusion that the greater 
 part of the consideration of the lot was the property, not 
 of Horner, but of the defendant; and that the small bal- 
 ance of it, paid by Horner, was paid under circumstances 
 which entirely rebut the presumption of a resulting trust. 
 We are also of opinion that there was no mistake or fraud 
 that can have any influence on the case. The consequence 
 is, the complainant is not entitled to the relief prayed for, 
 and the Circuit Court should have dismissed his bill upon 
 the merits. The decree of that Court in favor of the com- 
 plainant is erroneous, and must be reversed. 
 
 Per Curiam. — The decree is reversed with costs. Cause 
 remanded, with directions to the Circuit Court to dismiss 
 the bill, &c. 
 
 Caswell, Starr, and Dunn, for the appellant. 
 
 Lane and Stevens, for the appellee. 
 
 Washburn and Another v. Payne. 
 
 Justice of the Peace — Jurisdiction — Amount. — In an action of debt 
 before a justice of the peace, on a bond in the penalty of 175 dollars con- 
 ditioned for the delivery of property, the plaintifT, in the statement of his 
 demand, claimed 81 dollars and 25 cents : Held, that the justice had 
 jurisdiction; the sum actually demanded not exceeding 100 dollars (a) 
 
 APPEAL from the Vigo Circuit Court. — This was an 
 action of debt by Payne against Washburn and Richard- 
 son. 
 
 (a) Post 237 ; 7 Blkf. 343 ; 6 Ind. 344 ; 59 Id. 287 ; 6 Blkf. 425. 
 
 (253)
 
 217 SUPREME COUHT OF INDIANA. 
 
 Reno V. Crane. 
 
 ['="217] *ScoTT, J. — On a bond for 175 dollars, with con- 
 dition for the delivery of certain property, an 
 action was brought before a justice of the peace. The 
 plaintiff below in stating his cause of action before- the 
 justice, claimed 81 dollars and 25 cents, and had judg- 
 ment to that amount. Defendant appealed to the Circuit 
 Court, and thence to this Court. The statute of 1827 
 gives jurisdiction to a justice of the peace, where the 
 sum clue or demanded shall not exceed 100 dollars. From 
 the phraseology of the statute, we are of opinion that the 
 intention of the general assembly was to regulate the 
 jurisdiction of a justice of the peace, not by the amount 
 named in the bond, on which suit might be brought, but 
 by the amount actually claimed or demanded by the 
 plaintiff. The amount claimed in this case, and alleged 
 to be due to the plaintift", is 81 dollars and 25 cents. This 
 sum is clearly within a justice's jurisdiction under the 
 statute. For this sum judgment was rendered by the 
 justice, and that judgment was correctly affirmed by the 
 Circuit Court (1). 
 
 Per Curiam. — The judgment is affirmed, with 5 ^^er cent. 
 damages and costs. 
 
 Judah] for the appellants. 
 
 Kinney, for the appellee. 
 
 (1) "In all actions of debt or tismmpsit, wherein the sum rfwe or demanded 
 shall be over 50 dollars and not exceed 100 dollars, exclusive of interest and 
 costs, justices and Circuit Courts shall have concurrent jurisdiction." R. 
 C. 1831, p. 297. 
 
 Reno v. Crane. 
 
 Evidence — Entry — Partnership. — Held, that an entry in the partnership 
 books by one of the partners in the business of a saw-mill, charging him- 
 self with a boat which he had built at the mill, — might be introduced by 
 ■him as evidence, inter alia, to prove the boat to be his individual prop- 
 erty. 
 
 (254)
 
 MAY TERM, 1829. 217-218 
 
 Reno V. Crane. 
 
 ERROR to the Jackson Circuit Court. 
 HoLMAN, J.— Replevin by Reno for a boat. The de- 
 fendant pleaded property in himself. Verdict and judg- 
 ment for defendant. A bill of exceptions shows, that the 
 defendant proved by several witnesses, that he 
 [*218] built the boat at Fischli's mills; *and that while 
 he was building it, he frequently declared that he 
 was building it for himself; that the materials for the 
 boat were sawed at said mills ; and that the boat was fin- 
 ished in December, 1826. The plaintiif proved, that the 
 defendant and Fischli were partners in the mills at the 
 time the boat was built; and that the partnership ex- 
 pended to all the business that was transacted at the 
 mills; that the partnership expired on the Ist January, 
 1827 ; about which time the defendant removed from the 
 mills', leaving the boat on the premises in the care of his 
 agent; that Fischli, the other partner, came into the sole 
 possession of the premises directly after the defendant 
 removed, and sold the boat to the plaintifl' in Jannary, 
 1827, for the sum of 50 dollars. The defendant then 
 offered to read from a book, said to be the account book 
 of Fischli and Crane, and endorsed ledger No. 1, a charge 
 entered in said book in his own hand-writing, dated the 
 28th of December, 1826, charging himself with the said 
 boat at 60 dollars, after proving by one witness, (who 
 examined the said book and found an account against 
 himself,) that he believed the book to be the account 
 book of Fischli and Crane ; and by another, that the book 
 was principally made out by him in his hand-writing; 
 that in May, 1826, at defendant's request, he made out 
 part of the book and finished the residue, so far as was 
 done by him, in the ensuing December; that it was a 
 copy of the original book of entries of Fischli and Crane, 
 and was selected from day-books, blotters, and docu- 
 ments, some of which were in Fischli's hand-writing, and 
 was an exposition of the whole concern. The plamtitt 
 objected to the reading of the entry from the book, but 
 
 (255)
 
 218-219 SUPREME COURT OF INDIANA. 
 
 Millar v. Farrar, 
 
 the Circuit Court admitted it in evidence to the jury; to 
 which the plaintiff took his exceptions. 
 
 The defendant, it seems, was the active partner in this 
 firm, and transacted the principal part of the business, 
 and kept the entire account; and anything that he in 
 good faith purchased of the partnership property, became 
 exclusively his. The entry of the purchase of the boat in 
 the partnership books, though in his own hand-writing, 
 might be introduced, among other circumstances, to show 
 that the boat was his, although built as the joini prop- 
 erty of the firm. The evidence relative to the book 
 strongly conduces to show that it was the true account 
 book of the firm; and as the bill of exceptions 
 ["^219] nowhere states that the "^whole of the eviaence is 
 set forth, the presumption is conclusive in favor 
 of the opinion of the Circuit Court. 
 
 Pe?' Curiam. — The judgment is affirmed with costs. 
 
 Howk, for the plaintift'. 
 
 Nelson and Farnham, for the defendants. 
 
 Millar v. Farrar. 
 
 Error — Answer — In Part. — If a jilea, In bar of a writ of error, answer 
 only a part of the errors assigned, it is bad on demurrer (a). 
 
 Same — Release —Practice. — A release of errors, executed for the purpose 
 of procuring an injunction, may be pleaded in bar of a writ of error, al- 
 though the injunction had been refused and the bill dismissed. 
 
 ERROR to the Dearborn Circuit Court. 
 
 HoLMAN, J. — Farrar obtained a judgment against Mil- 
 lar, on scire facias, in the Dearborn Circuit Court, the 
 record of which was afterwards consumed by fire. A mo- 
 tion was made, agreeably to the act of assembly, to rein- 
 state said judgment; and the judgment was reinstated 
 
 (a) 59 Ind. 483 ; 51 Id. 69. 
 
 (256)
 
 MAY TERM, 1829. 219-220 
 
 Millar v. Farrar. 
 
 accordingly. To reverse which this writ of error is pro- 
 secuted. Errors are assigned in the original judgment, 
 in the notice to reinstate the judgment, and in the judg- 
 ment as reinstated. 
 
 The defendant in this Court pleads, first, in nullo est 
 erratum. Secondly, a release of all errors in the judg- 
 ment on scire facias. And thirdl}', that after the rendi- 
 tion of the judgment on scire facias, and after the rendi- 
 tion of the judgment on the motion aforesaid, and after 
 the reinstating of the said judgment, the said Millar made 
 his release in writing, sealed with his seal and filed in the 
 clerk's oflace of the Dearborn Circuit Court as required 
 by law; a copy whereof duly authenticated, &c., is to the 
 Court now shown, whereby he released all errors in law 
 in the proceedings, rendering, and final restoration of said 
 judgment; and this he is ready to verify, &c. The plain- 
 tiff demurs to the second plea. To the third plea he re- 
 plies, that the release in said plea alleged was executed 
 by him, at the time in said plea mentioned, for the pur- 
 pose of procuring an injunction to stay further pro- 
 ceedings on said judgment at law, and for no other con- 
 sideration whatever; and he avers that he wholly 
 [*220] *failed to procure an injunction, and that he has 
 since dismissed his bill in which said injunction 
 was prayed ; and this he is ready to verify, &c. To this 
 replication the defendant demurs. 
 
 The second plea is not good. It is pleaded in bar to 
 the writ of error, but it only answers to a part of the er- 
 rors assigned. The plaintiff's demurrer must therefore 
 be sustained. The release set forth in the third plea 
 covers the whole assignment of errors. The case there- 
 fore rests on the validity of that release. That release, it 
 seems from the pleadings, was a statutory release, filed in 
 the clerk's oflSce for the purpose of obtaining an injunc- 
 tion ; and the plaintiff' contends that as he did not obtain 
 an injunction, and afterwards dismissed his bill, that the 
 release is not obligatory on him. In support of this posi- 
 YoL. II.— 17 (257)
 
 220-221 SUPREME COURT OF INDIANA. 
 
 Galletly v. The Board of Justices of Owen County. 
 
 tioii he relies upon the case of Clar^k v. Goofhcin, 1 Black- 
 ford, 74. But the release in that case had no legal resem- 
 blance to this. That release was not under seal; it did 
 .not comply with the statute; and for the purpose fop 
 which it was filed it was a nullity. As the party that ex- 
 ecuted it could not legally obtain any advantage by virtue 
 of it, no principle of law would authorize it to be set up 
 against him as an effective release. Here the release, un- 
 der the pleadings, must be considered as good and valid 
 in itself, and when filed it was completely operative for 
 all the purposes for which it was executed. It immedi- 
 ately inured to the plaintiff's benefit to the full extent 
 contemplated bylaw; that is, it removed one statutory 
 barrier out of his way in obtaining an injunction. If 
 through some neglect of other statutory requisitions, or a 
 want of equity, he failed to obtain the contemplated re- 
 lief, that failure could not have a retrospective effect and 
 render the release inoperative. The release still remains 
 in full force, and the plaintiff by virtue thereof may even 
 now, or at any time hereafter, obtain an injunction to stay 
 any proceedings that may be had on that judgment, pro- 
 vided he complies with the other necessary prerequisites. 
 The release is therefore well pleaded against him, and is 
 a bar to the writ of error. 
 
 Per Curiam. — The writ of error is barred, with costs. 
 
 Test, for the plaintiff. 
 
 Dunn, for the defendant. 
 
 [*221] Galletly w. The Board of Justices of Owen 
 
 County. 
 
 Title-Bond — Tender of Deed. — In an action on a title-bond conditioned 
 to make a deed for real estate on payment of the purchase-money, the 
 declaration averred a payment of the money and a failure to make the 
 deed. Plea, that, before the commencement of the suit, the defendant 
 
 (258)
 
 MAY TERM, 1829. 221-222 
 
 Hotchkiss V. Lyon and Others. 
 
 had tendered the deed, which was refused ; that he had always been 
 ready, and was still ready, &c. Held, on demurrer, that the plea was 
 good ; it not appearing but that the payment was made on the day 
 the deed was tendered (a). 
 
 ERROR to the Owen Circuit Court. 
 
 Scott, J. — Samuel Fain, as county agent, gave his bond 
 to make Galletly a deed for a lot in the town of Spencer, 
 on the payment of the purchase-money; with a proviso, 
 that no deed was to be made prior to the 17th of Octo- 
 ber, 1822. At the May term, 1828, Galletly brought suit 
 on the bond, and assigned as a breach that he had fully 
 paid the price of the lot, yet the said agent, though often 
 requested, had not made the deed, &c. The defendants 
 pleaded a tender of the deed before the commencement 
 of the suit, to wit, on the 16th of May, 1827, and a refusal 
 b}' the plaintiff to accept the same, and that since that 
 time they have been always ready and are still ready, &c. 
 Demurrer to the plea, and joinder, and judgment for the 
 defendants. The record shows no failure on the part of 
 the defendants. Xo time is mentioned in the declaration 
 when the alleged payment was made. For aught that 
 appears in the record, it might have been on the same 
 day on which the deed was tendered. The demurrer 
 was correctly overruled (1). 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Kinney, for the plaintiff. 
 
 Whitcomb, for the defendants. 
 
 (1) The plaintiff, in the case in the text, could not recover, unless he had 
 demanded a deed before the commencement of the suit. Vide Sheets v. Atv- 
 dreivs, Nov. term, 1829, post. 
 
 [*222] 'i'HoTCHKiss V. Lyon and Others. 
 
 Evidence — Admission. — A. entered into partnership with B. in the busi- 
 ness of tanning; and C. bound himself in a covenant to B. for A.'s con- 
 
 (a) 5 lud. 517 ; 57 Id. 34 ; 3-4 Id. 174 ; 25 Id. 168 f 4 Id. 224. 
 
 (259)
 
 222 SUPREME COURT OF INDIANA. 
 
 Hotchkiss V. Lyon and Others. 
 
 duct as a partner for a certain time. Held, that, in an action by B. 
 against C. on the covenant, the admissions of A., made after the expira- 
 tion of the stipulated time, were not admissible as evidence against C. 
 
 ERROR to the Vigo Circuit Court. 
 
 HoLMAN, J. — Lyou, Allen, and Creal, as the sureties of 
 Burnett, covenanted with Hotchkiss, that said Burnett, 
 whom Hotchkiss had taken as a partner in the business 
 of tanning, should faithfully discharge his duty as such 
 partner, and fully account, &c., with the said Hotchkiss 
 for and during the term of two years from the 11th of 
 January, 1823. To a declaration on this covenant for 
 breaches in the year 1823, the defendants pleaded, among 
 other pleas, that said Burnett did discharge all the duties 
 that they had covenanted that he should discharge, &c. ; 
 on which issue was taken. On the trial, as appears by 
 bills of exceptions taken by the plaintiff, the Circuit 
 Court refused to admit the plaintifi' to give in evidence 
 the admissions of Burnett, made in the year 1825, that a 
 certain book offered in evidence, w^as the account book 
 of the partnership between the plaintiff and Burnett; 
 and. also refused to admit evidence of the declarations of 
 Burnett, made in 1825, that he had received certain hides, 
 &c. The defendants obtained a verdict and judgment. 
 The plaintiff appealed to this Court, 
 
 The admissibility of Burnett's declarations as evidence 
 against the defendants, presents the onl\' question in dis- 
 pute. In the case of The Governor v. Shelby, November 
 term, 1826, we decided that a judgment against the sher- 
 iff was no evidence against his sureties for the same 
 demand. The cases uniformly support that decision. 
 There are some cases which were urged by the plaintiff 
 in that case, and which are relied on in support "of this 
 appeal, that are clearly inapplicable. They decide, that 
 when a party who is ultimately liable, has notice of a 
 suit against an intermediate party, he is bound by a de- 
 cision against that intermediate. ])arty, and can not after- 
 wards controvert it. But a judgment as^ainst a prin- 
 
 (260)
 
 MAY TERM, 1829. 222-22^ 
 
 Wilson I'. Oatman. 
 
 cipal is in no case conclusive against a surety, no mat- 
 ter on what ground that judgment has been 
 [*223] given. "^In this case judgment against Burnett 
 even by confession, would have been no evi- 
 dence against his sureties; but a judgment against the 
 sureties would have been conclusive against Burnett if he 
 had been legally notified of the action. The defendants 
 w^ere bound for the conduct of Burnett, during the term 
 for which they had covenanted, but not for what he 
 might, after a lapse of several years, be induced to say in 
 relation to his conduct during the stipulated term. It is 
 true that, while the principal is acting, his declarations 
 may be so interwoven with his acts, as to stand in direct 
 connection with them, and form a part of the res gestae, 
 but when he ceases to act, his subsequent declarations 
 have no direct connection with his preceding acts, so as 
 to bind his sureties. The authorities on this subject place 
 the matter beyond dispute. In Evans v. Beattie, 5 Esp, 
 R. 26, it was decided, that if A. guaranty the payment 
 of such goods as B. shall deliver to C, the declaration of 
 C. of his having had goods is not admissible to prove the 
 fact against A. The delivery of the goods must be 
 proved. See also the cases of Bacon v. Chesney, 1 Stark. 
 R. 192; Dunn v. Slee, Holt's Cas. 399; Beall v. Beck, 3 
 Har. & M'Henry, 242; Bespublica v. Davis, 3 Yeates, 128; 
 8 Stark. Ev. 1386. We are therefore of opinion that the 
 evidence was properly rejected. 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Dewey, for the plaintiff. 
 
 Kinney, for the defendants. 
 
 "Wilson v. Oatman. 
 
 Dower— In Improvemexts. — After the alienation of real estate, and be- 
 fore the death of the grantor, the value of the estate was greatl;, enhanced 
 
 (261)
 
 223-224 SUPREME COURT OF INDIANA. 
 
 AVilson V. (J.itiiian. 
 
 by improvements made by the grantee. Held, that the dower of the 
 grantor's widow should be assigned according to the value of the prop- 
 erty at the time of the alienation (c/). 
 Same — Value — Coxveyaxce — Title-Bond. — A title-bond, conditioned for 
 the conveyance of real estate on payment of the purchase-money, was ex- 
 ecuted, and possession at the same time given to the obligee. The pur- 
 chase-money was afterwards paid, and a title obtained by the purchaser. 
 Held, that the date of the bond must be considered the period of aliena- 
 tion, in estimating the value of the property with a view to the dower of 
 the obligor's widow. 
 
 ERROR to the Floyd Circuit Court. 
 
 Blackford, J. — George Oatman, the husband of 
 [*224] the ^defendant in error, was seized in his life-time 
 of 67 acres and a-half of land, in Floyd county. 
 On the 18th of March, 1810, Wilson, the plaintift'in error, 
 purchased this land from Oatman, received a bond con- 
 ditioned for a title to be made on payment of the pur- 
 chase-money, and was put into possession of the premises. 
 The payment of the purchase-monej- was completed in 
 March, 1819. Oatman died in 1821, without having exe- 
 cuted a deed to Wilson. In 1824, Wilson applied to the 
 Probate Court, and obtained the legal title for the land, 
 according to his bond. At the date of the title-bond, 
 to wit, in 1816, the only improvements on the land were 
 two small cabins, and about 6 acres cleared and fenced. 
 But previously to Oatman's death, which was in 1821, 
 Wilson had cleared and improved 40 acres of the laud fit 
 for cultivation ; planted an orchard; and erected buildings 
 worth 3,000 dollars. In 1827, the widow Oatman, who is 
 the defendant in error, brought the present suit to obtain 
 her dower ; and commissioners were accordingly appointed, 
 under the statute, to assign and set it off to her. In the 
 appointment of the commissioners, the Circuit Court di- 
 rected them that, in their assignment of the dower, they 
 should take into consideration the situation of the prem- 
 ises, at the time of the decease of the husband. The com- 
 missioners upon an examination of the premises, were of 
 
 (a) 3 Ind. 343. 
 
 (262)
 
 MAY TEKM, 1829. 224-225 
 
 Wilson V. Oatman. 
 
 opinion, that no division of the property could be made 
 by metes and bounds. They, therefore, assigned the 
 dower specially, agreeably to the statute, by allowing to 
 the doweress the one-third of the annual value of the prem- 
 ises, to wit, 50 dollars, to be paid to her annually during 
 her life. In fixing upon the amount of the dower, the 
 commissioners were governed by their estimate of the 
 value of the property at the time of Oatman's death, in- 
 cluding the improvements made by Wilson, the plaintiff 
 in error, subsequently to the date of his title-bond, and of 
 his being put into possession. The report was objected to 
 by Wilson, but was confirmed by the Circuit Court; and 
 there was judgment accordingly. 
 
 The only error assigned is, that the amount of the 
 dower was determined, by estimating the value of the 
 land, with the improvements, at the time of the husband's 
 death; whereas, it is contended, it should have been de- 
 termined, by an estimate of the value at the date of the 
 
 bond. The law may be considered as settled, that 
 [*225] in case of alienation of the land by the *husband, 
 
 the time when the husband alienated the estate, 
 not that of his death, is the proper period at which to esti- 
 mate the value of the propert}^ with a view to dower. Hale 
 y. James, 6 Johns. Ch. Rep. 258. In the case we are con- 
 sidering, the purchase was made, the title-bond given, 
 and the possession delivered, on the 18th of March, 1816 ; 
 thousrh the deed was not executed until it was directed 
 to be executed agreeably to the contract, by an order of 
 the Probate Court, in 1824, some years after the hus- 
 band's death. Under these circumstances, we think, that 
 the execution of the deed must relate back to the time of 
 the original contract and possession ; and that the date of 
 that contract must be considered to be the period of 
 alienation, in estimating the value of the property with a 
 view to the dower of the defendant in error. If the im- 
 provements, made by the purchaser subsequently to his 
 contract and possession, were to be taken into considera- 
 
 (263)
 
 225-226 SUPREME COURT OF INDIANA. 
 
 Wilson ('. Oatiuan. 
 
 tion in the estimate of dower, in cases like tlie present, 
 tlie rule would tend to discourage the making of improve- 
 ments, and would be contrary to the policy of the country. 
 (1). The judgment of the Circuit Court, therefore, con- 
 lirming the report of the commissioners, together with so 
 much of the order by which they were appointed, as 
 directs them in their assignment of the dower, to take 
 into consideration the situation of the premises at the time 
 of the death of the husband, must be reversed ; and the 
 cause remanded for further proceedings. 
 
 Per Curiam. — The judgment is rovcrsod. jvp.d the pro- 
 ceedings, &c., are set aside, with costs. Cause remauJ- 
 ed, &c. 
 
 Ndson, for the plaintiff. 
 
 Farnharn, for the defendant. 
 
 (1) Judge Story, in a case on this subject, speaking o£ C. J. Tilghman's 
 opinion in Thompson v. Morrmv, 5 S. & R. 289, says : " In his own language 
 I can state, that 'with respect to dower, I have found no adjudged case in 
 the Year Books, confining the widow to the value at the time of the alien- 
 ation by her husband, where the question did not arise on improvements 
 made after the alienation, and that having considered all the authorities which 
 bear upon the question, I find myself at liberty to decide according to what 
 appears to me to be the reason and the justice of the case, which is, that the 
 widoiv shall take no advantage of the improvements of any kind made by the pur- 
 chaser, but throwing those out of the estimate, she shall be endowed ac- 
 cording to the value at the time her dower shall be assigned to her.' 
 This doctrine appears to me to stand upon solid principles, and the general 
 analogies of the law. If the land has, in the intermediate period, risen in 
 value, she receives the benefit ; if it has depreciated, she sustains 
 [*'226] the loss. Her title is consummate by her husband's *death, and in 
 the language of Lord Coke, that 'title is to the quantity of the land, 
 viz. one just third part.' If, on the other hand, the value of the land has 
 increased solely from the improvemenis made upon it, and without those 
 improvements it would have remained of the same value as at the time of 
 the alienation, the old value, and not the improved value, is to be taken 
 into consideration. For practical purposes, it is impossible to make any 
 distinction between the value of the improvements and the value resulting 
 from the improvements ; between improvements vvhich operate on a part 
 of the land, and those which operate upon the whole." Powell v. The M. & 
 B. M. Co. 3 Mason, 347, 374. 
 
 Chancellor Kent says: "The better, and the more reasonable general 
 American doctrine upon this .subject, I apprehend to be, that the improved 
 value of the land, from which the widow is to be excluded, in the assign- 
 ment of her dower, even as against a purchaser, is that which ha,s arisen 
 from the actual labor and money of the owner, and not from that which 
 has arisen from extrinsic or general causes." 4 Kent's Comm. 2 Ed. OS. 
 
 Land is mortgaged by the husliaud, who continues in possession and 
 
 (264)
 
 MAY TERM, 1829. 226-227 
 
 M'Glimmery v. Brush, in Error. 
 
 makes improvements. The equity of redemption is afterwards foreclosed 
 or released. In estimating the wife's dower, the value of the improvements 
 must be taken into consideration ; the date of the foreclosure or release be- 
 ing deemed the period of alienation. 4 Kent's Comm. 2 Ed. 66. 
 
 M'Glimmery v. Brush, in Error. 
 Slander — Plaintiff's Wife — Evidence. 
 
 AN action of slander was brought by Brush against 
 M'Glimmery, for words charging the plaintiff with steal- 
 ing, and for words charging him and his family with mur- 
 der. The defendant pleaded not guilty. Held, that words 
 charging the "Brush family" with stealing, or with mur- 
 der, might be proved by the plaintiff to show malice; but 
 that no slanderous words spoken of the plaintiff's wife 
 alone were admissible as evidence in this action. 
 
 The State v. Cooper and Others. 
 
 Recognizance — Indictment — Requisites. — A., B., and C. entered into a 
 recognizance for A.'s appearance on the first day of the term of the next 
 Circuit Court, to answer a charge of larceny. On the first day of the 
 term A. failed to appear. He also made default on the .second day, when 
 the recognizance was declared forfeited, and a scire facias issued thereon 
 returnable to the next term. Plea to the scire facias, that no present- 
 ment or indictment had been found against A., though since the date of 
 the recognizance, two grand juries had been impaneled. Held, on de- 
 murrer, that the plea was insufficient (a) 
 
 [*227] ^i'-EREOR to the Owen Circuit Court. 
 
 HoLMAN, J. — E. Cooper, I. Cooper, and 11. Matheny, en- 
 tered into a recognizance, conditioned that E. Cooper 
 should be and appear before the Owen Circuit Court, on 
 the first day of the next term of that Court, to answer to 
 
 (a) 25 Ind. 384 ; 6 Blkf. 212. 
 
 (265)
 
 227 SUPREME COURT OF IXDIAXA. 
 
 The State i; Cooper and Others. 
 
 a charge of larceny, and to abide the decision of the 
 Court, &c. On the first day of the next term, E. Cooper 
 fai'ed to appear, and his bail when required failed to pro- 
 duce him in Court. On the second day of the term, E. 
 Cooper was again called and failed to appear; and his 
 bail were again required to produce him in Court, but 
 they again made default. The Court then declared the 
 recognizance forfeited, and av\'arded a scire facias against 
 the principal and bail, requiring them to show cause why 
 the state should not have execution against them on the 
 recognizance. At the next term, the defendants pleaded 
 to the scire facias, that tliere Avas no charge of larceny in 
 said Court against E. Cooper, by presentment or indict- 
 ment, for the said E. Cooper to appear and answer unto ; 
 and that, since the said supposed recognizance was en- 
 tered into, two grand juries had been impaneled and 
 sworn in said Court and charged to inquire, &c., and that 
 no bill of indictment or presentment had been found 
 against said E. Cooper ; and that no legal charge of lar- 
 ceny could be found on the records of said Court against 
 him. The attorney for the state demurred, and the Cir- 
 cuit Court adjudged the plea to be good, and gave judg- 
 ment for the defendants. 
 
 Agreeably to a suggestion in the case oi Adair \. The 
 State, 1 Blackf. 200, this recognizance was forfeited on 
 the first day of the term mentioned in the recognizance, 
 by the default made on that day, and a judgment of for- 
 feiture might have then been entered. 1 Chitt. C. L. 105; 
 2 Com. Dig. 45. Yet if E. Cooper had appeared at any 
 subsequent day of the term, and no indictment or pre- 
 sentment had been found against him, and no legal rea- 
 son given why he should be longer held to answer to the 
 charge, the Court might have discharged him and his bail 
 from their recognizance. But the simple fact that no in- 
 dictment or presentment had been found against him 
 would not, jjcr se, be a suflicient ground on which they 
 could claim a discharge, as there might be cases that 
 
 (266)
 
 MAY TERM, 1829. 227-228 
 
 Jackson, on the Demise of Taylor, v. Cullum. 
 
 would require the principal still to be held to answer to 
 the charge, although no bill was then found against 
 r*228] him. The passing of another terra of *the Court, 
 and the holding of another inquest by the grand 
 iury, who found no bill against E. Cooper, do not alter 
 the case ; because if the judgment of forfeiture was legally 
 entered, and the state then had a right to have execution 
 on the recognizance, that right could not be affected by a 
 failure to make out a charge at the succeeding term. In 
 strictness of law, the recognizance was forfeited, and the 
 state had a right to her execution on it, when the first de- 
 fault was made. Subsequent indulgence is discretionary, 
 and can not be claimed by the defendants as a matter of 
 rio-ht; and surely the lapse of time necessary for eutorc- 
 iiro- the right of the state agreeably to the forms ot law, 
 can not affect the right itself. We therefore consider the 
 plea as no bar to the action. 
 
 Per Cariani.—The judgment is reversed with costs. 
 Cause remanded, &c. 
 
 Whitcomb, for the state. 
 
 Hester, for the defendants. 
 
 Jackson, on the Demise of Taylor, i'. Cullum. 
 
 EVIDENCE-SECONDARY-It is a general rule, that the best evidence must 
 be o-iven of which the nature of the case is capable. 
 
 SAME-JUDGMENT.-If any instrument of writing, or even the record of a 
 judgment, be lost or destroyed, the contents may be proved by parol evi- 
 dence (a). 
 
 ERROR to the Dearborn Circuit Court. Ejectment. 
 Plea, not guilty. Verdict and judgment for the defend- 
 ant. 
 
 Scott, J.— On the trial of t his cause in the Circuit 
 
 (a) 4 Ind. 109. 
 
 (267)
 
 SUPREME COURT OF INDIANA. 228-226 
 
 Jackson, on the Demise of Taylor, v. Cullum. 
 
 Court, after tlio plaintiff bad proved a legal title in him- 
 self, the defendant offered parol evidence of an outstand- 
 ing title, founded- on a judgment, an execution, a levy, 
 sale, sherifl''s deed, and a return of execution, all de- 
 stroyed by fire. This evidence was objected to by the 
 plaintiff; but the objection was overruled, and the evi- 
 dence was permitted to go to the jury; and this is the 
 only error complained of. 
 
 On the subject of evidence, the general rule is that 
 the best attainable evidence shall be adduced to prove 
 every disputed fact. The effect of this rule is, that, when, 
 
 from the nature of the transaction, superior evi- 
 [^229] dence may be presumed to be * within the power 
 
 of the party, that which is inferior will be exclud- 
 ed. But when it is manifest that evidence of a higher 
 degree is not within the power of the party, that of a 
 lower degree will be received; and the general rule never 
 excludes the best evidence which can be procured. 1 
 Stark Ev. 391. In conformity with this rule, it has been 
 held, that if a recovery in ancient demesne be lost, and 
 the roll can not be found, parol evidence may be resorted 
 to. 1 Stark. Ev. 159. In the case of Bilts v. Colvin, 14 
 Johns. R. 182, parol proof of a matter of record was ex- 
 cluded, on the ground that there was better evidence then 
 within the power of the party. The case of Jackson v. 
 Frier, 16 Johns. R. 193, was decided on the ground that 
 due diligence had not been used in searching for the deed 
 alleged to be lost. In both these cases it is stated that, on 
 proof being made that better evidence was unattainable, 
 parol testimony would have been admitted. In the case 
 of Hamilton's lessee v. Swearingen, Add. R. 48, parol evi- 
 dence was offered to supply the placo of a lost deed, but 
 the Court refused to receive it. It is there said, that in 
 some cases such testimou}^ must be received from neces- 
 sity; but it is of so dangerous a nature that necessity 
 alone can justify its admission. The evidence in that 
 case was offered by the plaintiff, who mio;ht have taken 
 
 (268)
 
 MAY TERM, 1829. 229-230 
 
 Dickerson v. Gray, in Error. 
 
 steps, before he commenced his suit, to restore his title. 
 The situation of a defendant is not so favorable. It might 
 not be in his power, after suit brought and before the trial, 
 to have the title restored on which he rested his defence; 
 and were this even practicable, such a proceeding m^ght 
 be dependent on the will of some other person, under 
 whose title he found it necessary to protect himself. 
 Without resting, however, on the distinction between the 
 situation of a plaintift' and a defendant, we think the case 
 o^ Hamilton's lessee v. Su^ecmiigen more than balanced by the 
 doctrine clearly laid down in other ^ases, where the prin- 
 ciples are founded on better reason and tend more to the 
 furtherance of justice. 
 
 In the case under consideration no doubt is suggested, 
 and it is believed none exists, of the loss of the papers 
 proposed to be supplied by oral proof; and if there can be 
 any case in which parol evidence would be admitted to 
 supply the loss of a deed or record, we can not easily con- 
 ceive of one in which necessity would more 
 [*230] strongly urge such a measure. We are therefore *of 
 opinion that the Circuit Court was correct in suf- 
 fering the defendant's evidence to go to the jury. 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Caswell a,ud Starr, for the plaintiff. 
 
 Dunn and Lane and Stevens, for the defendant. 
 
 Dickerson v. Gray in Error. 
 
 Bastardy — Party Plaintiff — Judgment (a). 
 
 THE prosecution, under the statute for the support of 
 illegitimate children, should be in the name of the state (1). 
 
 In all cases in which the state takes an obligation from 
 an individual for the performance of any duty, it should 
 be by recognizance, unless the law otherwise direct. 
 
 (a) 1 Ind. 53 ; 3 Id. 564.
 
 230-231 SUPREME COURT OF INDIANA. 
 
 Brown v. Wyncoop. 
 
 The order oftlio Court, in a case of bastardy, after 
 stating what sum the father must pay for the mainte- 
 nance of the child should be — that the defendant pay the 
 money to the person who shall maintain the child, or be- 
 come entitled to the same by law ; and that he enter into 
 a .ecognizance with one or more sureties, for the perform- 
 ance of the order. 
 
 (1) Slate V. Bradley, Yo\. 1 of these Rep. 83; Woodkirk v. Williams, id. 110. 
 
 Brown v. Wyncoop. 
 
 Former Adjudication — Ejectment.— If a defendant in ejectment have a 
 legal title to the premises, and neglect to produce it in that action, he can 
 not, after a verdict against him, obtain an injunction of the proceedings 
 at law, by a bill in chancery founded on the same title. 
 
 Ejectment — Fraudulent Conveyance. — The question, whether a deed 
 be fraudulent and void as to creditors, may be examined and decided in 
 an action of ejectment (6). 
 
 Former Adjudication — Parties. — A decree in chancery is not binding on 
 a person who was not a party to the suit (c). 
 
 ERROR to the Franklin Circuit Court. 
 
 Blackford, J. — The plaintifl' in error was the complain- 
 ant below. He states in his bill that, in 1825, he bought 
 a tract of land from Rossell Sturdevant, received a title- 
 bond for it at the time, and afterwards, in 1827, obtained 
 from him a deed; that Rossell Sturdevant had bought 
 the land, bona fide, from Azor Sturdevant, in 1817, 
 who, in the same year, had bought it from John Bates. 
 
 He further states that, in 1819, Schoonover, the 
 [*231] ^assignee of Bates, recovered a judgment against 
 
 Azor Sturdevant for 733 dollars and 33 cents, due 
 for the consideration of the land as the complainant be- 
 lieves; that the land was levied on as Azor Sturdevant's, 
 under an execution on this judgment, and bought at the 
 sheriif's sale by Schoonover; that in the same yenr, 1819, 
 
 (b) 35 Ind. 44 ; 45 Id. 589. (c) 27 Ind. 73. 
 
 (270)
 
 MAY TERxVI, 1829. 231 
 
 Brown v. Wvncoop. 
 
 Schoouover sold the laud to Wyncoop, the present de- 
 fendant; that after the sheriff's sale, Azor Sturdevant 
 paid the judgment to Schoouover, who agreed to enter 
 satisfaction on it; that the complainant, under his pur- 
 chase, has kept peaceable possession of the premises; 
 that the defendant, claiming under Schoouover, filed a 
 bill in chancery against Rossell Sturdevant, in his ab- 
 sence, alleging that the deed to him from Azor Sturde- 
 vant had been made to defraud Schoouover out of his 
 money; that the defendant, though he knew of the com- 
 plainant's claim, did not make him a party to the chan- 
 cery suit; that the bill was taken for confessed, in Ros- 
 sell Sturdevant's absence, and the conveyance to him 
 from Azor Sturdevant was set aside; that after this de- 
 cree, the present defendant, Wyncoop, brought an action 
 of ejectment against the complainant, and obtained a 
 verdict against him; and, in consequence of the said de- 
 cree, will recover the possession, unless the Court inter- 
 feres. The bill prays, that the complainant may be made 
 a party to the former chancery suit against Eossell Stur- 
 devant; that the decree ma}' be opened, and the com- 
 plainant allowed to answer the bill. It also prays an 
 injunction of tlie proceedings at law. The defendant 
 demurred to the bill; and the Circuit Court sustained the 
 demurrer. 
 
 We have no doubt, but that the decision of the Circuit 
 Court is correct. One short reason is, that the complain- 
 ant had every opportunity, in the action of ejectment, to 
 defend the cause on the ground of his deed from Rossell 
 Sturdevant. • The burthen of proof of that deed's being 
 insufficient, for want of a title in Rossell Sturdevant, lay 
 upon the plaintiff in that action. The decree in chan- 
 cery against Rossell Sturdevant, was no evidence in the 
 ejectment against the present complainant, because he 
 was not a party to that suit; and, consequently, not 
 bound by the decree in it. By the present bill, the com- 
 plainant only seeks for an opportunity to oppose the 
 
 (271)
 
 231-232 SUPREME COURT OF INDIANA. 
 
 Smith, Administrator, v. Smith and Others. 
 
 charge of fraud, made to the deed by which his grantor 
 claimed the property. The opportunity to do 
 
 [*232] that "was given to the complainant in the ^action 
 at law. The demurrer to the bill was correctly 
 
 sustained. 
 
 Per Curiam. — The decree is affirmed with costs. 
 Rariden, for the plaintiff. 
 Caswell, for the defendant. 
 
 Smith, Administrator v. Smith and Others. 
 
 Practice — Dismissal. — A complainant in chancery may, on payment of 
 costs, dismiss his bill at any time before a final hearing, provided he be 
 not in contempt (a). 
 
 Contempt. — The complainant's mere failure to comply with an interlocu- 
 tory order of the Court, does not of itself so place him in contempt, as to 
 prevent him from dismissing his bill on payment of costs. 
 
 ERROR to the Ripley Circuit Court. 
 
 HoLMAN, J. — The complainant, as administrator of Sam- 
 uel Smith, deceased, filed his bill in chancery, in the Rip- 
 ley Circuit Court, for relief against a settlement of his 
 accounts as administrator, in the Probate Court. The 
 bill admitted the sum of 476 dolhirs and 36 cents to be 
 due to the heirs of the deceased. The answer claimed 
 more than was adjudged to be due by the Probate Court; 
 and called upon the complainant to answer interrogato- 
 ries, &c. The Circuit Court made an order that the com- 
 plainant should, on a certain day, pay into the hands of 
 the clerk of that Court the amount admitted by the bill 
 to be due. With this- order the complainant failed to 
 comply. He also failed to answer the interrogatories of 
 the defendants, and the}- were taken as confessed. The 
 complainant then moved for leave to dismiss his bill ; 
 
 (a) 2 Ind. 90. 
 
 (272)
 
 MAY TERM, 1829. 232-233 
 
 Doe, on the Demise of Helm, r. Xewland and Another. 
 
 which leave the Circuit Court refused, because the com- 
 phiinant was in contempt for not obeying the aforesaid 
 order of the Court, and proceeded to enter up a final 
 decree against him. 
 
 It is a general rule that a complainant may, upon pa}'- 
 raent of costs, dismiss his bill at any stage of the proceed- 
 ings before a iinal hearing. 1 Newl. Ch. Pr. 177. Agree- 
 ably to Carrington v. Holly, Dick. 280, although a cause 
 is brought to a hearing and an issue directed, until that 
 issue is tried and there has been a determination, let the 
 cause be in what stage it may, the complainant 
 [*233] may, upon motion, dismiss his bill upon ^payment 
 of costs. There is, however, another rule of 
 chancery practice equally general, viz., that when a party 
 is in contempt, he can not be heard until he clears his 
 contempt. But we do not consider that the complain- 
 ant's non-compliance with the order of the Circuit Court 
 did of itself fix him in contempt, in the technical sense 
 of that term. It was certainly a ground on which the 
 Court might have adjudged him to be in contempt, if no 
 explanation was ofi'ered by him; but standing as it does 
 in this case, without any adjudication upon it, it can not 
 be considered as such a contempt as precludes him from 
 being heard in the case. And if he had a right to be 
 heard at all, he had a right to dismiss his bill on payment 
 of costs. The Court, however, had a right to require the 
 costs to be paid or secured before the leave wa-s given. 
 
 Per Curiam. — The decree is reversed. Cause remanded, 
 &c. 
 
 Stevens, for the plaintiff. 
 
 Dunn, for the defendants. 
 
 Doe, on the Demise of Helm, v. Newland and Another. 
 
 Evidence — Declarations of Gbantor — Note — Date of Debt.— A. ob- 
 tained judgment against B. on a note, and purchased, at the sheriff's sale 
 under the judgment, a tract of land which B., after the date of the note and 
 
 Vol. IL— 18 (273)
 
 233-23-i SUPKEME COURT OE INDIANA. 
 
 Doe, on tlie Demise uf Ikliii, c. Newlaml and Another. 
 
 before the judgment, had conveyed to C. A. brouglit an action of eject- 
 ment for the hind against C, and I lie (luestion was, whether B.'s deed to 
 C. was fraudulent and void as to A. 
 Held, that evidence of B.'s having stated, that the consideration of the deed 
 to C. was a valuable one, was not admissible. Held, also, that the note 
 on which the judgment was rendered, was admissible to show the exist- 
 ence of the debt before the date of the deed. 
 
 ERROR to the Union Circuit Court. — Ejectment. Plea, 
 not guilty. Verdict unci judgment for the defendants. 
 
 Blackford, J. — This was an action of ejectment. On 
 the trial of the cause, after the plaintiff had closed his 
 testimony, the defendants introduced a deed of convey- 
 ance executed to them by their father, Harrod Newland, 
 dated the 20th of February, 1826, for the premises in dis- 
 pute. They offered a witness to prove that the vendor 
 had stated, in the defendant's presence, at the time 
 [*234] the deed was executed, that it had *been given 
 upon a good and valuable consideration. This 
 evidence was objected to, but was admitted by the Court. 
 After this and some other similar testimony had been 
 given b}' the defendants, the plaintiff, in order to show 
 the deed to be fraudulent as to his lessor, offered to intro- 
 duce, among other evidence, a promissory note, duly ex- 
 ecuted to him for 120 dollars, given by Harrod Newland, 
 the grantor, and dated the 22d of October, 1822, which 
 was long before the date of his deed to the defendants. 
 The Court rejected this evidence on the ground "that it 
 Avas the same note upon which the suit was brought, upon 
 which the sheriff's sale took place, under which the plain- 
 tiff' claimed title; and that the note was merged in the 
 suit." 
 
 We have no doubt in this case. The question on the 
 trial was, whether the deed to the defendants by their 
 father was fraudulent and void as to the plaintiff's lessor, 
 in consequence of the grantor's being indebted to him at 
 the date of the deed? To determine this question, it was 
 important to ascertain what had been the consideration 
 
 (274)
 
 MAY TERM, 1829. 234-235 
 
 Gamble and Others v. Cummins, in Error. 
 
 of the deed. The dechiratious of the grantor, however, 
 proved by the defendants, that the consideration was a 
 vahiable one, should not have been admitted by the Court. 
 The grantor himself, if not interested, would have been 
 a good witness to prove the consideration and support the 
 deed; but his previous declarations on the subject were 
 mere hearsay evidence. On the other hand, if the grantor 
 was interested, the defendants could not introduce him, 
 much less his previous declarations, to support the con- 
 veyance he had made to them. With respect to the other 
 point, we are of opinion that the plaintiff, in attempting 
 to prove the deed to be fraudulent as to his lessor, had a 
 right to prove that the note to him by the grantor, which 
 was offered in evidence, was in existence at the date of 
 the deed. The judgment and sheriff's sale, mentioned 
 by the Court below, could not possibly be any objection 
 to the proof of the note, under the circumstances of the 
 
 case. 
 
 Per Curiam. — The judgment is reversed, and the ver- 
 dict set aside, with costs. Cause remanded, &c. 
 
 Smith, for the plaintiff. 
 
 Dunn, for the defendants. 
 
 [*235] *Gamble and Others v. Cummins, in Error. 
 
 .Judgment — Assignment — To whom Paid. 
 
 A JUDGMENT, after being replevied by the execution 
 of a replevin-bond, was assigned. Held, that payment by 
 the debtor or his replevin-sureties to the original judg- 
 ment-creditor, before notice of the assignment, was valid. 
 
 Alcorn v. Harmonson. 
 
 Contract— Lease— Breach— Remedy.— A person entered into possession 
 of real estate under a parol contract, by which the lessee was to have a 
 written lease for the premises for 7 years, and was to make certain im- 
 provements thereon. After a part of the work had been done, and long 
 
 (275)
 
 235-236 SUPREME COURT OF IXDIAXA. ■ 
 
 Alcorn v. Hariuonson. 
 
 before the expiration of the term, the lessor refused to execute the lease, 
 and obliged the lessee to quit the premises. Held, that the lessor, having 
 rescinded the special contract, was liable to the lessee, in indebitatus as- 
 sumpsit, for the work performed («)• 
 
 ERROR to the Marion Circuit Court. 
 
 Scott, J. — Actiou on the case on promises, before a 
 justice of the peace. Judgment for defendant. Appeal 
 to the Circuit Court. Verdict and judgment in the Cir- 
 cuit Court in favor of Ilarmonson, the appelhmt, for 4b 
 dollars and 50 cents. Writ of error. 
 
 A bill of exceptions, made part of the record, states 
 that Alcorn agreed, by parol, to give Harmonson a lease 
 for seven years of an unimproved tract of land. Ilar- 
 monson was to clear twenty acres, build a cabin, dig a 
 well, and do some other work, and was to have a lease in 
 writing. In pursuance of this agreement, Harmonson 
 went on the land, cleared about nine acres, built a cabin, 
 dug a well, and performed certain other labor, and con- 
 tinued on the premises about two years. Alcorn refused 
 to execute a lease, and gave Harmonson notice to quit 
 the premises, which he did accordingly, and brought this 
 suit to recover a compensation for his labor. It is alleged 
 here, as error, that the contract, being by parol, was void 
 under the statute of frauds, and that the plaintiff could 
 not recover on a general count in assumpsit, on proof 
 
 of a special agreement. 
 [*236] *This agreement, being by parol, was not avail- 
 able under our statute, as a lease for seven years; 
 it could have no greater force or effect than a lease at 
 will. The lessor had the power to determine the interest 
 of the lessee; which he did b}' giving him notice to leave 
 the premises; and, by this act, he rescinded the contract 
 for a seven years' lease. Where money has been paid, 
 upon a contract which is afterwards rescinded by the act 
 of the defendant, it has been held that the plaintiff has a 
 riglit to recover back the money. 2 Stark. Ev. 116; 1 
 
 (a) 1 Ind. 267 ; 13 Id. 494 ; 20 Id. 198. 
 
 (276)
 
 MAY TERM, 1829. 236-237 
 
 Kelsey v. Dickson, in Error, 
 
 T. R. 133; 7 T. R. 177. And no reason exists why the 
 value of hibor, performed upon such a contract, should 
 not be recovered on the same principle. Although the 
 parol contract was not binding as a lease for a term of 
 years, it might be used to show that Harmonson was not 
 on the premises as a trespasser, but that the labor was 
 done with the consent and at the request of the defend- 
 ant; and he having rescinded the agreement by which 
 the plaintift* was induced to perform the labor, left na 
 special contract in existence which could bar the plain- 
 tiff's right to recover the value of the improvements in 
 this form of action. 
 
 Per Ciiriani. — The judgment is affirmed, with 6 per cent. 
 damages and costs. 
 
 Gregg, for the plaintifi'. 
 
 Fletcher and Brown, for the defendant. 
 
 Kelsey v. Dickson, in Error. 
 
 KELSEY and Dickson being partners in a mill which 
 they had built, entered into a written agreement stating, 
 inter alia, that Dickson had bought Kelsey's interest in 
 the mill for 500 dollars, to be paid in certain installments. 
 Kelsey, in an action against Dickson for the purchase- 
 money, was permitted to show by parol evidence, that 
 the sum of 500 dollars, which Dickson was to pay Kelsey 
 for his interest in the mill, was exclusive of the expenses 
 that had been incurred in building it; and that those ex- 
 penses were to be paid by Dickson. 
 
 Dickson had given to Kelsey a receipt as follows: 
 
 "Rec'd, 17th Oct. 1821, of J. Kelsey, 250 dollars, 
 [*237] which, with 100 dollars, ^formerly rec'd (as per 
 
 rec't given Mr. K.), I am to lay out for him in 
 Louisville, in such goods as will suit the Terre ITante mar- 
 ket, charging him cost and carriage; or should this mode 
 
 (277)
 
 237 SUPREME COURT OF INDIANA. 
 
 Evans and Others r. Shoemaker. 
 
 of settlement not be desired, I am to pay the amount in 
 specie, adding a premium of two |;er cent. — say in all 357 
 dollars, with interest from the date until paid. — Francis 
 Dickson, Jun." In an action by Kelsey against Dickson, 
 in which Kelse}'' claimed the whole. amount named in this 
 receipt, it was held that, though the original receipt for 
 100 dollars was not produced nor its absence accounted 
 for, that circumstance was not of itself sufficient to ex- 
 clude Kelsey from the benefit of the receipt for the whole 
 amount, including the 100 dollars acknowledged to have 
 been previously received. 
 
 Evans and Others v. Shoemaker. 
 
 Justice op Peace — Jurisdiction — Amount. — A justice of the peace, under 
 the statute of 1827, has jurisdiction in actions of debt on penal bonds, 
 conditioned for the performance of covenants, when the penalty does not 
 exceed 100 dollars (a). 
 
 Same — Pleading. — No statement of the demand, except the filing of the 
 bond, is in such case necessary ; nor need there be any suggestion of 
 breaches (6). 
 
 Pleading — Striking out. — If a defence be filed, which is not relevant to 
 the cause, it may be rejected on motion (c). 
 
 Official Bond — Delivery-Bond— Form. — The condition of a delivery- 
 bond showed, that the property was to be delivered to the person to whom 
 the execution was directed, but it did not state his name. Held, that the 
 omission of the sheriff's name did not render the bond void, but that the 
 ambiguity thereby occasioned might be explained by extrinsic evidence. 
 
 ERROR to the Owen Circuit Court. 
 
 Blackford, J. — This case had originated before a jus- 
 tice of the peace. The transcript of the justice's judg- 
 ment, with the bond on which the suit was founded, was 
 filed in the clerk's office on the 21st of December, 1827. 
 Shoemaker was the plaintiff, and Evans, Harris, and John- 
 
 (a) Ante 216. (6) -1 BIkf. 174; 5 Id. 339; 6 Id. 91, 184; 16 Ind. 312. 
 {c) 15 Ind. 280. 
 
 . . (278)
 
 MAY TERM, 1829. 237-238 
 
 Evans and Others r. Shoemaker. 
 
 son, were the defendants. It was an action of debt on a 
 penal bond in the sum of 94 dollars, payable to the plain- 
 tiff, and dated the 1st of November, 1827. The condition 
 of the bond was, " that if the above bound Andrew Evans 
 does, on the 12th instant, deliver to me in the town of 
 Spencer, three head of horses, taken by virtue of an ex- 
 ecution to me directed from the clerk of the Owen Cir- 
 cuit Court in favor of Thomas Shoemaker, then," 
 [*238] &c. *Previously to the commencement of the 
 trial, the defendants tiled the following defence, 
 to wit, that the demand, if collected from them, was not 
 coming to the plaintiff, but to certain heirs; that one of 
 ihe defendants was the surety of the guardian of those 
 heirs ; and that the defendants ought not to be compelled 
 to pay, until the surety was discharged as such, he being 
 doubtful whether his principal would faithfully discharge 
 his duties. The execution, returned witli the delivery - 
 bond on which this suit is founded, was endorsed as fol- 
 lows : " Came to hand, 14th Sept., 1827.— Robert M.Wood 
 en, sheriff, 0. C. Levied on three head of horses, 1 
 property of Andrew Evans. Took delivery-bond wi;l; 
 Daniel Harris and Gabriel Johnson security thereto, and 
 the defendants failed to deliver the property on the day 
 of sale; therefore no money made on the within execu- 
 tion, but said bond is returned to the clerk's office. Nov. 
 12th, 1827.— Robert M. Woodin, sheriff, 0. C." The jus- 
 tice, after hearing the evidence, gave judgment in favor 
 of the plaintiff for 53 dollars and 54 cents, together with 
 costs. The defendants appealed to the Circuit Court. 
 
 In the Circuit Court, a motion was made to dismiss the 
 cause, because, 1st, there had been no statement of the 
 cause of action filed before the justice; and 2d, the jus- 
 tice had no jurisdiction of the cause. This motion the 
 Circuit Court overruled. The plaintiff" moved to reject 
 the defence filed before the justice; which motion the 
 Court sustained. The plaintiff suggested, on the record, 
 the following breach of the condition of the bond, to wit, 
 
 (279)
 
 238-239 SUPREME COURT OF INDIAITA. 
 
 Evans and Others v. Shoemaker. 
 
 "that the said Andrew Evans did not, nor did any other 
 person, deliver the said three head of horses, or either of 
 them, on the said 12th of I^ovember, 1827, in the town 
 of Spencer aforesaid, in manner and form as they were 
 bound in said condition to do." The cause was submit- 
 ted to the Circuit Court without a jury. A judo-nient 
 was rendered in favor of the phaintiff below for 94 dol- 
 lars, the penalty of the bond; and the damages were as- 
 sessed at 54 dollars and 90 cents, together with costs. 
 
 The first error assigned is, that the justice had no juris- 
 diction of the cause, because the bond on which the suit 
 was founded was a penal one, conditioned for the deliv- 
 ery of property taken by the sheriff on execution. In 
 answer to this, it must be observed that the statute 
 [*239"1 of 1827 gives the justice jurisdiction in *all actions 
 of debt, where the sum due or demanded does not 
 exceed 100 dollars, exclusive of interest and costs. The 
 present case, certainly, comes within the terms of the 
 statute (1). The second error assigned is, that no state- 
 ment of the cause of action was filed before the justice. 
 There is nothing in that. The statute of 1827 requires no 
 statement of the demand in such a case, except the filing 
 of the bond, which was done. The third assignment or 
 error is, that the Circuit Court should not have rejected 
 the defence, nor have permitted the suggestion of breaches. 
 The defence was properly rejected. That one of the de- 
 fendants was a surety of the guardian of certain heirs en- 
 titled to the money after the collection of it by the plain- 
 tiff, had nothing to do with the case. The suggestion of 
 the breach was mere surplusage, in a case originating 
 before a justice. Fo assignment of breaches was neces- 
 sary. The last error assigned is, that the bond is void. 
 It is objected under this head, that the condition of the 
 bond does not state to whom the property was to be de- 
 livered. The answer to this is, that although the name of 
 the sheriff is not mentioned, yet as delivery was to be to 
 the person to whom the execution was directed by the 
 
 (280)
 
 MAY TERM, 1829. 239-240 
 
 Lefavoiir and Another v. Yandes and Another. 
 
 clerk of the Court, the omission of the name of the sherift', 
 only created such an ambiguity as was susceptible of ex- 
 planation by extrinsic proof. The return on the execution 
 shows that the bond was taken by Robert M. Wooden, 
 the sheriff of the county. There may have been other ex- 
 planatory testimony ; and as the evidence is not spread on 
 the record, we must presume that the necessary proof was 
 given. There appears to ns therefore, to be no ground 
 for the objections, made by the plaintiffs in error to the 
 proceedings in this cause. The judgment must be affirmed. 
 
 Per Curiam. — The judgment is affirmed, with 5 ^;er cent. 
 damages and costs. 
 
 Hester and Gregg, for the plaintiffs. 
 
 Whitcomb, for the defendant. 
 
 (1) Vide Washburn v. Payne, ante, p. 216, and note. 
 
 [*240] *Lefavour and Another v. Yandes and Another. 
 
 Partnership — Declarations of Partner. — Assumpsit by partners for 
 work and labor. Held, that evidence of the statements of one of the part- 
 ners, made after the dissohition of the partnership, so far as tliey tended 
 to show a new contract destroying the jiartnership claim, and giving to 
 each partner a separate demand for liis part of the debt, was not admis- 
 sible ; but that the statements of such partner, so far as they showed a 
 payment made to himself, might be proved (a). 
 
 APPEAL from the Marion Circuit Court. — Assumpsit. 
 Plea, the general issue. Verdict and judgment for the 
 defendants. 
 
 Scott, J. — An action was brought in the name of 
 Lefavour and Shryock against Yandes and Wilson, for 
 work and labor in erecting a mill. The defendants intro- 
 duced evidence to prove that Shryock, one of the plaintiff's, 
 disclaimed the action, and acknowledged that he had re- 
 ceived satisfaction in full for his part of tlie labor, and that 
 an agreement had been made, by and between the plain- 
 
 (a) Post 371 ; 3 Blkf. 433 ; 2 Ind. 322 ; 6 Id. 304 ; 12 Id. 223. 
 
 (281)
 
 240-241 SUPREME COURT OF INDIANA. 
 
 Lefavour and Another v. Yandes and Another. 
 
 tift's and the defendants, subsequently to the completion of 
 the work, that the defendants were to pay each of the 
 partners his part severally. On this evidence the Court 
 instrnctedthe jury, "that if there was an acknowledgment 
 by one of the partners, after the dissolution of the part- 
 nership, that an agreement was made by the parties, sub- 
 sequently to the completion of the work, that the defend- 
 ants were to arrange, satisfy, and pay each of the plaintiffs, 
 as they could agree with each of them severally ; and that 
 they did accordingly pay one of the partners in full for 
 his part; the other partner must bring a separate suit for 
 his part." To this instruction the plaintiffs excepted, and 
 their bill of exceptions is spread on the record. 
 
 Had the defendants proved such an agreement by a 
 disinterested witness, or other legal proof, they might have 
 defeated an action in the partnership name ; but the 
 objection here is to the kind of proof which is intro- 
 duced to establish the agreement. Had Lefavour brought 
 his action separatel}' for his part of the claim, proof of 
 Shryock's acknowledgment would have been insufticient 
 to show the separation of interests ; and the reason is 
 equally strong, that it should have been received to defeat 
 an action in the partnership name. On this ground, 
 ["^241] *we think the judgment for the defendants in the 
 Circuit Court is erroneous. Several other excep- 
 tions were taken in the course of the trial below, which 
 need not now be noticed. From a view of the whole case, 
 we are of opinion that the action in the name of the 
 partners should be sustained. Shryock's admissions are 
 admissible to prove the paj'ment made to himself but not 
 to change the contract (1). 
 
 Per Curiam. — The judgment is reversed, and the ver- 
 dict set aside, with costs. Cause remanded, &c. 
 
 Brow7i, for the appellants. 
 
 Fletcher and Gregg, for the appellees. 
 
 (1) The declarations of one partner, as to the payment subsequently to a 
 dissolution of a debt due to the partnership, are admissible against the 
 other partner. Kussell & Mylne, 191, per Brougham, Chancellor. 
 
 (282)
 
 MAY TERM, 1829. 241-242 
 
 Wilson r. Harding. 
 
 Wilson r. Harding. 
 
 E^^DENCE— Hearsay.— Neither hearsay nor irrelevant testimony is admis- 
 sible. , . , 
 
 Slander- Perjury.— A declaration in slander charged the detendant with 
 having said, that the plaintiff had sworn false on a certain trial before a 
 justice' of the peace; but there was no averment that the testimony al- 
 leged to be false, was material. Held, that the declaration could not be 
 objected to, after verdict, for the want of that averment (a). 
 
 ERROR to the Marion Circuit Court.— Slander for 
 words chargins: the plaintiff with having sworn false, on 
 a certain trial, before a justice of the peace. Plea, not 
 
 guilty. 
 
 Scott, J.— An action of slander was brought in the 
 Marion Circuit Court, by Harding against Wilson for 
 words importing a charge of perjury on a trial before a 
 justice of the peace. There was a verdict and judgment 
 for the plaintiff in the Circuit Court; and to reverse that 
 judgment is the object of this writ of error. 
 
 One error assigned is that Wilson, the defendant be- 
 low, asked Sharpe, one of the witnesses, what one Wright 
 had said on the subject of Harding's te.stimony before the 
 justice. To which question Harding objected; and the 
 Court sustained the objection. Another error assigned 
 is, that the Circuit Court admitted, as evidence, a tran- 
 script of the proceedings before justice Bradley, in 
 [*242] the case to which reference was had in the ^charge 
 of perjury. A third error .assigned is, that the 
 defendant below offered to prove certain admissions, and 
 subsequent denials, made by the plaintiff' in a conversation 
 with himself. We think there is nothing in these objec- 
 tions. Had the question, stated in the first assignment 
 to have been asked by the defendant, been answered by 
 the witness, it would have been hearsay evidence. It was 
 therefore properly rejected. We can discover no ground 
 to support the second objection. And th e third refers to 
 
 (a) 52 Ind. 442 ; 13 Id. 535 ; 50 Id. 129. 
 • (283)
 
 242-243 SUPREME COURT OF INDIANA. 
 
 Youse V. M'Creary. 
 
 testimony which was irrelevant, and therefore inadmis- 
 sible. All the other errors assigned converge to one 
 point. It is alleged that tlie words are not actionable, 
 because it is not stated in the declaration that the testi- 
 mony given by Harding on the trial alluded to, was ma- 
 terial to the point in issue. This position, we think, is 
 not supported b}' either principle or precedent. Where 
 there has been a trial before a competent tribunal, it will 
 be presumed that the testimony given on that trial was 
 material. To charge a man with perjury, in reference to 
 a trial where perjury might be committed, is actionable; 
 as to say, you were foresworn at such a trial; or, as ia 
 this case, to say of another, that he is foresworn before a 
 justice of the peace, has been held to be actionable. 
 Stark, on SI. 78; 3 Lev. 166. Slanderous words should 
 be taken, in Courts of justice, in the sense in which they 
 are commonly understood. Every slander imports an in- 
 jury; and the injury arises from the words in their com- 
 mon acceptation. The words, in this case, without ex- 
 planation or qualification, have a slanderous import; the 
 jury have so understood them; and it is not the duty of 
 the Court to search for possible cases, in which they 
 might have been spoken in a sense more innocent than 
 that which has been ascribed to them. The judgment of 
 the Circuit Court must be affirmed. 
 
 Per Curiam. — The judgment is aflirmed, with 1 per cent, 
 damages and costs. 
 
 Broion and 3Icrrill, for the plaintiff". 
 
 Wick, Fletcher, and Gregg, for the defendant. 
 
 [*243] Youse v. M'Creary. 
 
 Mortgage — Default — Remedy. — If a pertion, holding a bond for the pay- 
 ment of money secured by a mortgage .on real estate, ])roceod first upon 
 the mortgage, he is precluded bv the statute of 1824 from anv other rem- 
 
 (284)
 
 MAY TERM, 1829. 243 
 
 Youse V. M'Creary. 
 
 edy. But he may proceed first upon the bond to judgment, sell I he mort- 
 gaged property on execution, and hold the obligor liable for any balance 
 that may remain due : in this case, the obligee waives his claim under 
 the mortgage, and the purchaser at sheriff's sale holds the land freed 
 from the mortgage (a). 
 
 ]SroTE— Insolvent Maker— Remedy of Assignee.— If the maker of a note 
 be notoriously insolvent, the assignee may sue the assignor without hav- 
 ing previously sued the maker (6). 
 
 Same— Same— Damage.— If the assignee of a note can not collect the 
 money from the maker, he may recover from tlie assignor the amount 
 paid for the assignment, together with interest and the costs of the suit 
 against the maker. The amount of the note is prima facie evidence of the 
 price received by the assignor ; but he is at liberty to prove the real con- 
 sideration (c). 
 
 ERROR to the Union Circuit Court. 
 
 Blackford, J.— This was an action of assumpsit by 
 M'Creary, the assignee of a sealed note, against Youse, 
 the assignor. The declaration states that the note was 
 made on the 25th December, 1824, by Chesney to Kelly, 
 for 6Q dollars and 66 cents, and assigned by the payee to 
 Youse, who assigned it to M'Creary. It is also averred, 
 that, at the time the note became due, the maker was in- 
 solvent, and has so continued ever since. The defendant 
 pleaded the general issue. The following is the agreed 
 case : 
 
 "The parties in the above entitled cause agree that the 
 following are the true facts upon which this cause is 
 founded, to wit, the writing obligatory upon the assign- 
 ment of which this suit is founded— together with two 
 other notes, each of the same amount, one of which has 
 since been paid by the maker, and the other of which has 
 been prosecuted against him, and a part of the amount 
 made by a sale of his property, and a judgment rendered 
 for the bahance against the defendant in this cause — was 
 executed by Chesney, at the time stated in the declara- 
 tion, to the payee, in consideration of a house and lot in 
 Brownsville. Chesney at the same time executed to the 
 
 (a) Post 268. {b) 4 Tnd. 31S ; 9 Id. 522 ; 11 7c/. 245. (c) 37 lod. 107, 
 
 (285)
 
 243-244 SUPREME COURT OF INDIANA. 
 
 Youse V. M'Creary. 
 
 payee of the notes a mortgage on the same house and lot, 
 and duly acknowledged the same, for the amount of the 
 
 notes, as a collateral security for their payment; 
 ['■'244] and the ^mortgage was recorded in proper time. 
 
 Two of the notes, one of which Is the foundation 
 of this suit, were assigned to the defendant, as stated in 
 the declaration, by the payee thereof; and, at the same 
 time, the mortgage was, by the mortgagee, assigned to the 
 defendant as a collateral security for the payment of these 
 two notes. The defendant, Youse, assigned the said two 
 notes to the plaintifi* by a general assignment; and, at the- 
 same time, assigned the mortgage to him as a collateral 
 security; in consideration of a wagon, worth about 65 
 dollars, sold and delivered by the plaintiff to the defend- 
 ant. At the time the note specified in the declaration be- 
 came due, Chesney, the maker, had not, nor has he yet, 
 any property whatever, and was and is totally insolvent, 
 except as to the said house and lot mortgaged as afore- 
 said ; which house and lot, it is agreed, had, previously 
 to the time the said note, upon the assignment of which 
 this suit is founded, became due, been levied upon, taken 
 in execution, and sold, by the said plaintiff, on a judgment 
 obtained by him, in the Union Circuit Court, on one of 
 the notes mentioned in the mortgage; and the same only 
 sold for the sura of 20 dollars and 25 cents, 10 dollars and 
 25 cents of which were applied to the costs of the suit, 
 and the balance applied to that judgment, the residue of 
 which judgment still remains unpaid. The plaintiff has 
 not proceeded on the mortgage, but still holds the same, 
 not discharged, unless the sale of the mortgaged prem- 
 ises by his order, on the judgment aforesaid, should be 
 considered a discharge. The. plaintiff has a judgment 
 unsatisfied against the defendant, Youse, in the Union 
 Circuit Court, for 50 dollars and 6 cents, the balance due 
 on one of the notes assigned as a consideration for said 
 wagon, and has received satisfaction of Chesney, the 
 maker, for the sum of 7 dollars and 50 cents of the 
 
 (286)
 
 MAY TERM, 1829. 244-245 
 
 Yonse V. M'Creary. 
 
 amount of said note on which said judgment was ren- 
 dered, by the sale of the mortgaged premises, 
 
 " The defendant contends, that if the plaintiff is en- 
 titled to recover, the measure of damages in this case 
 should be the consideration given for the assignment of 
 the notes, with interest, ro wit, 65 dollars, deducting the 
 sum of 57 dollars and 6 cents, a part of which was here- 
 tofore made, and for the balance of which judgment has al- 
 ready been rendered on the other note. The plaintiff" con- 
 tends, that he is entitled to recover the face of the 
 [*245] note, Avith interest, regardless of the value -'^given 
 for the assignment, as the assignment is general, 
 and no special contract relative to the matter. 
 
 "Now if the plaintiff" is entitled to recover, under this 
 statement of facts, then the Court will render judgment 
 for him, and assess his damages. But if the Court should 
 be of a diff"erent opinion, then a judgment is to be ren- 
 dered for the defendant. 
 
 " 0. H. Smith, for the piff". 
 " Rariden, for the deft." 
 
 The Circuit Court gave judgment in favor of the plain- 
 tiff", for the amount of the note specified in the declara- 
 tion with interest, to wit, for 68 dollars and 90 cents; 
 together with costs. 
 
 The first question in this cause is, whether the plain- 
 tiff" can recover, under tlie circumstances of this case? 
 It is contended that, as the asignment of a mortgage ac- 
 companied that of the bond, the plaintiff* was obliged, by 
 the statute of 1824, to rely upon the mortgaged premises 
 alone for the payment of the debt. We think, however, 
 that he was not. To be sure, if the holder of a bond and 
 mortgage elects to proceed first upon the mortgage, he is 
 precluded, by the express terms of the statute, from any 
 other remed}' (1). But there is nothing in the statute, in 
 our opinion, to prevent such a holder from proceeding 
 first upon his bond, selling the mortgaged premises on 
 execution, and thus electing to abandon the mortgage. 
 
 (287)
 
 245-246 SUPREME COURT OF INDIANA. 
 
 Youse V. M'Creary. 
 
 In this case M'Creary, in selling the house and lot on his 
 execution, waived any claim he might have had under the 
 mortgage; and the purchaser at sherifi''s sale received the 
 property freed from the mortgage. The consequence is, 
 that, according to the facts agreed on, the complete in- 
 solvency of Chesny was established, as alleged in the dec- 
 laration. In cases of that kind, to wit, of the maker's 
 notorious insolvency, a suit against him, in our opinion, 
 is not necessary in order to bind the endorser. The 
 plaintiff, therefore, in this case, had a right to recover. 
 
 The next question for our consideration is, what is the 
 measure of damages in an action, like the present, on the 
 assignment of an obligation ? It appears to us, that 
 where the money can not be obtained from the maker of 
 the note, the consideration which moved from the assignor 
 
 for whatever he receives for the note, thereby fails ; 
 [*246] and he should then be liable for the *value which 
 
 he had received from the asignee for that consid- 
 eration, with interest, and the costs of the suit against the 
 maker. See 1 Bibb, 545. The amount of the note is 
 lyrima facie evidence that that was the price paid for the 
 assignment ; but this ought not, we think, to prevent the 
 assignor from showing that the real value he received was 
 less than the face of the note. The intention of our stat- 
 ute, making the obligations assignable, will be best an- 
 swered, as we conceive, by this construction. In the pres- 
 ent case, the defendant received from the plaintiff a 
 wagon, worth a certain sum, on a consideration which has 
 failed in consequence of Chesny's insolvency; and the de- 
 fendant would be bound to return tlie value of the wagon, 
 with interest, had the plaintiff received nothing from the 
 maker in the suit on the other note; and had he not a 
 judgment already against the defendant himself, on the as- 
 signment of that note. These circumstances, however, 
 must affect the amount of the judgment to be recovered 
 111 the present case. Tlie correct rule for the assignment, 
 of the damages, which the plaintiff, M'Creary, may be en- 
 
 (288)
 
 MAY TERM, 1829. 246-247 
 
 Isaylor v. Moody and Another, Executors. 
 
 titled to recover, if any, we consider to be this : From 
 the agreed value of the wagon, with the interest, must be 
 deducted the amount received by the plaintiff on his judg- 
 ment against Chesny on the other note, and also the 
 amount of the plaintiff's judgment obtained against the 
 defendant on the assignment of that note, exclusive of 
 costs. We think that the rule adopted by the Circuit 
 Court, in this case, in assessing the damages, to wit, that 
 the face of the note must regulate the amount, is not in 
 accordance with the spirit of our statute making these 
 obligations assignable. 
 
 The judgment must be reversed, and the cause remand- 
 ed for a new assessment of damages. 
 
 Per Curiam.— The judgment is reversed with costs. 
 Cause remanded, &c. 
 
 Eariden, for the plaintiff. 
 
 Smith, for the defendant. 
 
 (1) The statute of 1824, referred to in the text, is repealed. Vide Stat. 
 1830, p. 50 ; K C. 1831, p. 244. 
 
 [*247] ^Naylor V. Moody and Another, Executors, 
 
 Foreign Administration — Practice. — Letters testamentary or of admin- 
 istrat'^on, granted in another state, will not authorize the executor or 
 administrator to commence a suit in this state, unless the letters be pre- 
 viously recorded in the Circuit Court of the county in which the suit is 
 commenced (a). 
 
 ERROR to the Clark Circuit Court. 
 
 Scott, J. — Richard Moody and Polly Moody, claiming 
 to be executor and executrix of the last will and testa- 
 ment of John Moody, deceased, filed in the office of the 
 clerk of the Court of Probate of Clark county, certain 
 papers purporting to be letters testamentary, granted to 
 
 (a) 35 Ind. 332; See 17 Id. 41. 
 
 Vol. II.— 19 ' (289)
 
 247-248 SUPEEME COURT OF INDIANA. 
 
 Naylor v. Moody and Another, Executors. 
 
 them by the county Court of Henry county, in the state 
 of Kentucky, accompanied with the last will and testa- 
 ment of the said John Moody, deceased ; and, on the same 
 day, sued out a scire facias to revive a judgment of the 
 Clark Circuit Court, in favor of the said John Moody, de- 
 ceased, against William H. Moore, and to have execution 
 thereon against the said William H. Moore and Isaac Nay- 
 lor, his replevin-surety. This scire facias was returned 
 served upon Naylor, and not found as to Moore. Naylor 
 appeared and filed three pleas; one of which was that the 
 letters testamentary, in the said writ mentioned, had never 
 been entered of record in any Circuit Court within this 
 state. To this plea the plaintiff's replied, that the said 
 letters were entered of record as required by law. The 
 matters in issue were submitted to the Court; and there 
 was judgment for the plaintiffs, and execution awarded. 
 Our statute of January the 26th, 1824, sec. 28, provides 
 that letters testamentary and letters of administration, 
 Obtained in a sister state, shall have full force and effect 
 within this state, and that the executors and administra- 
 tors mentioned therein may sustain suits thereon, and do 
 all other acts thereby authorized, upon having the same 
 entered of record in any Circuit Court in this state. The 
 letters testamentary, in this case, were filed in the clerk's 
 office in vacation. It is not alleged that they were re- 
 corded; but it is contended that the requisition of the 
 •statute is answered by the filing of the papers in the 
 
 clerk's office. We think the statute requires 
 [*248] something *more. Filing and entering of record 
 
 are not synonymous : they are no where so used. 
 These phrases frequently occur in our statutes ; and they 
 always convey distinct ideas. Filing, originally-, signified 
 placing papers in order on a thread or wire, for safe keep- 
 ing. In this country, and at this day, it means, agreeably 
 to our practice, depositing them in due order in the proper 
 office. Entering of record uniformly means writing. It 
 appears clearly, by the manner in which the words are 
 
 (290)
 
 MAY TERM, 1829. 248-249 
 
 The State v. Eackley. 
 
 used ill our statutes, that the legislature has recognized 
 this distiuction. If this view of the case be correct, the 
 plaintifts below, at the time they sued out the scire facias, 
 had not taken the steps necessary to authorize them to 
 sustain a suit in their representative capacity. They 
 should, instead of filing their papers in the probate office, 
 have had them recorded with the proceedings of the Cir- 
 cuit Court, subject to the inspection and control of that 
 Court, in case of any alleged defect or insufficiency. 
 Whether the plaintiffs had, or had not, entitled themselves 
 to sue as executors was a point directly before the Court 
 on the issue; and the judgment should have been for the 
 defendant (1). 
 ,Per Curiam. — The judgment is reversed with costs. 
 
 Dewey and Naylor, for the plaintiff. 
 Farnham, for the defendants. 
 
 (1) If a foreign executor wish to recover by suit, in England, a debt due 
 to his testator, a personal representative must be constituted, by the spirit- 
 ual Court in England, to administer ad litem. Attorney General v. Cockerell, 
 1 Price, 179. 
 
 An executor or administrator can not, by virtue of letters testamentary 
 or of administration granted in one state maintain an action in any other 
 state. Fenivick v. Sear's Adm'rs, 1 Cranch. 259 ; Dixon's Ex'rs v. Ramsay's 
 Ex'rs. 3 id. 319 ; Morrell v. Dickey, 1 Johns. Ch. R. 153. 
 
 "Letters testamentary, of administration, or of guardianship, granted in 
 any of the states or territories of the United States or in any foreign coun- 
 try, shall authorize the executor or administrator thereby appointed, to 
 sustain actions and suits, and to do all acts coming within their pow- 
 ers as such, within this state, upon the same or copies thereof duly and 
 legally authenticated, being produced and filed with the clerk of the Court 
 in" which such suits or actions are to be maintained, or within the jurisdic- 
 tion whereof such acts are to be done. And such guardians, after having 
 filed a copy of their appointment, and given bond and security under the 
 provisions of this act, shall have all the privileges of resident guardians. 
 R. C. 1831, p. 170. 
 
 [*249] *The State v. Eackley. 
 
 Judgment— Costs.— If the jury find a defendant in an indictment guilty 
 and assess the fine, but acquit him as to costs, no judgment for costs can 
 be rendered against him. 
 
 Statutes— Construction.— Statutes enacted at the same session of the leg- 
 
 (291)
 
 249 SUPREME COURT OF INDIANA. 
 
 The State v. Kackley. 
 
 islature are to be taken in pari materia, and should receive a construction 
 ■which will give effect to each if possible. But if each of them can not 
 have the same entire effect when taken in connection with the others, that 
 it would have if taken singly, they must be so construed as to give effect 
 to what appears to have been the main intention of the legislature (a). 
 
 ERROR to the Decatur Circuit Court. 
 
 HoLMAN, J. — Rackley was indicted for retailing spirit- 
 uous liquors without license. The jury found him guilty 
 and assessed his fine at three dollars and sixty-six cents, 
 and acquitted him of costs. The prosecuting attorney 
 moved the Circuit Court for a judgment for costs non 
 obstante veredicto; which motion being overruled, and 
 judgment given on the verdict for the fine only, he filed 
 a bill of exceptions, and has brought the subject before 
 tliis Court on a writ of error. 
 
 The 72nd section of the act respecting crimes and pun- 
 ishments, approved January the 20th, 1824, is in these 
 words: "Costs of suit shall, in all cases of conviction, 
 be included in the judgment, where the jury do not find 
 otherwise." R. C. 1824, p. 150 (1). It is not contended 
 hut that this provision, taken by itself, confers on the 
 jury a right, in cases of conviction, to acquit the defend- 
 ant of costs. But it is urged that this power in the jury 
 is virtually taken away by the act regulating the fees of 
 ofiicers, which was passed at the same session of the leg- 
 islature, and approved the 30th of January, 1824. By 
 which statute it is enacted, that the ofiicers therein men- 
 tioned shall be entitled to receive for their services the 
 fees, thereby allowed. Then follows a list of services and 
 fees, including the fees of clerks, sherifife, &c., in criminal 
 cases, in which it is stated that the prosecuting attorney's 
 fee for every conviction upon indictment or presentment 
 shall be five dollars. The fees in criminal cases allowed 
 by this act, are the costs for which judgments are usually 
 given, and what the act, in ordinary acceptation, pre- 
 supposes that the person convicted shall pay. This is 
 
 (a) 6 Ind. 354. 
 
 (292)
 
 MAY TEKM, 1829. 249-250 
 
 The State v. Rackley. 
 
 the plain meaning of the act. But this meaning 
 [*250] is not ^''expressed in such positive terms, as to 
 
 authorize this Court in saying that the act would 
 admit of no other, if we should thereby render ineffective 
 a previous enactment of the same legislature. This act 
 gives the officers a right to the enumerated fees, but does 
 not say in express words that they shall be paid by the 
 defendant in all cases of conviction ; and the legislature 
 having previously authorized the jury to acquit the de- 
 fendant of costs, we can not say that the two acts are so 
 contradictory that they can not stand together ; although 
 by this construction, we lind the officers of the Court en- 
 titled to certain fees in criminal cases, without any legal 
 method of obtaining them, whenever the jury think 
 proper to discharge the defendant from the payment of 
 costs. 
 
 There is another act on the subject of the fees of the 
 prosecuting attorney, which was also approved on the 
 30th of January, 1824; which provides that, in all judg- 
 ments in criminal prosecutions against any defendant or 
 defendants, the sum of five dollars shall be taxed in the 
 bill of costs, in favor of the prosecuting attorney. R. C. 
 1824, p. 128. This act seems to be more repugnant to 
 the dispensing power of the jury, with respect to costs, 
 than the act regulating fees ; yet if this act is not alto- 
 gether inconsistent with that, we should give it that con- 
 struction which, in our opinion, will give effect to what 
 might have been the intention of the legislature in their 
 several enactments (2). These acts, being passed at the 
 same session of the legislature, are to be taken in pari 
 materia, and to receive a construction that will give effect 
 to each if possible; but as each can not have the same 
 entire effect, when taken in connection with the others, as 
 it would have if taken singly, we must so construe them as 
 to carry into effect what appears to have been the main 
 intention of the legislature. That intention we conceive 
 to be this: — In criminal cases the several officers, includ- 
 
 (293)
 
 250-251 SUPREME COURT OF I^^DIANA. 
 
 The State v. Albertson. 
 
 ing the prosecuting attorney, shall be allowed certain 
 fees, which as a general rule, shall be taxed in the bill of 
 costs against the person convicted, and for which a judg- 
 ment shall be given ; provided, nevertheless, that the jury 
 shall have a right to discharge a person convicted from 
 the payment of costs. We conceive that, by this con- 
 struction, there is less violence done to the intention of 
 the legislature, than there would be in supposing 
 [*251] that they, by one act, intended to defeat ^another 
 that had been enacted at the same session. Un- 
 der this construction, if the jury exercise their dispensing 
 power, and acquit the defendant of costs, there will be no 
 bill of costs in which the prosecuting attorney's fee can 
 be taxed; and of course it will be left, with the other 
 fees, without any provision for its payment. The Circuit 
 Court acted correctly in refusing to give judgment for 
 costs. 
 
 Per Curiam. — The judgment is affirmed. 
 
 Whitcomb, for the state. 
 
 Wick, for the defendant. 
 
 (1) Ace. R. C. 1831, p. 195. 
 
 (2) Where two acts are repugnant, that which received the royal aseent 
 last must prevail. Rex v. Inhabitants of Middlesex, Dowl. P. K. 116. 
 
 The State v. Albertson. 
 
 Gaming — Criminal Practice. — The winning of any sum of money how- 
 ever small, at a game witli cards, is an indictable oflfence of which the 
 Circuit Court has exclusive jurisdiction. 
 
 Justice of Peace— Criminal Jurisdiction. — Offences punishable by a 
 fine not exceeding three dollars, belong exclusively to the jurisdiction of 
 justices of the peace. Other offences, punishable by a fine which may be 
 more or less than three dollars according to circumstances, are cognizable 
 only by the Circuit Court. 
 
 ERROR to the Marion Circuit Court. 
 
 (294)
 
 MAY TERM, 1829. 251-252 
 
 The State v. Albertson. 
 
 HoLMAN, J. — Indictment for winning thirty-seven and 
 a half cents at a certain game with cards. Indictment 
 quashed on motion by the Circuit Court. Writ of error 
 by the state. 
 
 The only question in the case is, whether the offence is 
 indictable in the Circuit Court, or falls exclusively within 
 the jurisdiction of a justice of the peace. 
 
 The 74th sec. of the act respecting crimes and punish- 
 ments states, that " in all offences in this act contained, to 
 which the affixed penalty does not exceed three dollars, 
 exclusive jurisdiction is given to justices of the peace of 
 the proper county." R". C. 1824, p. 150 (1). This act 
 contains a number of offences that are punishable by a 
 ffne not exceeding three dollars. All these belong ex- 
 clusively to the jurisdiction of a justice of the peace. 
 The act specifies many other offences punishable 
 [*252] *by fine, which may be more or less than three 
 dollars, according to the circumstances of the case. 
 These do not come within the foregoing provision of the 
 act. The terms of the act refer to offences by their ap- 
 propriate names, and not to the degree of criminality in 
 the commission of an offence. li' the highest penalty for 
 the commission of the offence, by its statutory name, does 
 not exceed three dollars, the jurisdiction thereof belongs 
 exclusively to a justice of the peace; but if a commission 
 of the offence may be punished by a higher fine than 
 three dollars, it does not come within the aforesaid pro- 
 vision, but belongs exclusively to the general jurisdiction 
 of the Circuit Court. 
 
 This assignment of jurisdiction is of offences in gen- 
 eral terms, and does not depend upon the particular cir- 
 cumstances which may attend the commission of an of- 
 fence. And we conceive that this should be the rule by 
 which the jurisdiction should be determined, not only 
 ivhere the amount of the penalty is discretionary in the 
 tribunal that adjudicates upon it ; but also where the pen- 
 alty is to be determined by a statutor}^ criterion, accord- 
 
 (295)
 
 252-253 SUPREME COURT OF INDIANA. 
 
 The State v. Albertson. 
 
 ing to the amount which is the subject-matter of the of- 
 fence, as is the case in the ofi'ences of winning or losing, 
 extortion, &c. In these offences, it has been urged that, 
 when the winning and losing does not exceed one dollar 
 and fifty cents, or the sum extorted does not exceed thirty 
 cents, the fine can not exceed three dollars, and of course 
 that, to this amount, they are assigned exclusively to the 
 jurisdiction of a justice of the peace. But we think that, 
 by a fair construction of the section of the act under con- 
 sideration, it will be found to embrace those ofi'ences only, 
 of which the justice of the peace can take cognizance 
 through all the variations with which they may be com- 
 mitted. And we think that this intention of the legisla- 
 ture is rendered more certain, by the diflicnlty and uncer- 
 tainty that would otherwise attend the administration of 
 justice under this part of our criminal code. 
 
 It is worthy of notice that the sum, by which the 
 amount of the penalty in these cases is determined, is, of 
 itself, a subject of adjudication, and might be considered 
 greater or smaller, from the same evidence, by one tri- 
 bunal than by another; so that to fix that sum 
 [*253] as a line of demarkation between two ^distinct 
 jurisdictions, would in many instances jeopardize 
 the administration of justice; as, in the ofience of win- 
 ning, the justice of the peace might be of opinion that a 
 greater sum than one dollar and fifty cents was won, which 
 would exclude the case from his jurisdiction; and, in the 
 same case, if afterwards heard in the Circuit Court, the 
 jury might find that the sum won did not exceed one dol- 
 lar and fifty cents, which would exclude the case from the 
 jurisdiction of the Circuit Court. So that although no 
 doubt existed as to the commission of the offence,- yet, on 
 account of the difterent opinions of different tribunals as 
 to the sum involved in the offence, the offender would go 
 unpunished. 
 
 In the case before us, the amount said to have been 
 won, as charged in the indictment, is thirty-seven-and-a- 
 
 {296)
 
 MAY TERM, 1829. 253-254 
 
 The State v. Albertson. 
 
 half cents; and so leaves no doubt as to the utmost ex- 
 tent of the penalty ; and therefore does not exhibit a full 
 view of the difficulty that would grow out of the rule of 
 determining the jurisdiction by the sum lost or won. 
 But if the sum charged in the indictment, when less than 
 one dollar and fifty cents, would exclude the case from 
 the jurisdiction of the Circuit Court, the same sum found 
 in the verdict of the jury, would have the same effect; 
 and as we think it was not the intention of the legislature 
 to introduce this uncertainty as to the jurisdiction of this 
 offence, we can not think they intended to determine the 
 jurisdiction of the offence by the sum lost or won, al- 
 though in a particular case like the present, no inconve- 
 nience would result from the adoption of such a rule. 
 
 We are therefore of opinion that the legislature, in as- 
 sigiing jurisdiction to the justices of the peace, had refer- 
 ence to offences by their statutory names, without any 
 regard to the circumstances of the case by which the 
 amount of the penalty is to be determined. So that as 
 soon as it is known that an individual has committed a 
 particular offence, it will be also known what tribunal 
 has cognizance of that offence. But if the jurisdiction 
 depended on the degree of criminality in the commission 
 of the offence, the proper tribunal that had cognizance of 
 the offence, could not be known until something like an 
 adjudication had taken place; and in many cases the full 
 means of determining the jurisdiction could not be obtained 
 
 until the matter was under judicial investigation; 
 [*254] and a sr.iall mistake, *in a sum lost or won, might 
 
 be fatal to the jurisdiction resorted to. 
 This division of the offence under consideration, be- 
 tween two distinct jurisdictions, might also place some 
 offenders who were guilty in nearly the same degree, under 
 very different circumstances as it regarded their trial, and 
 the costs to which they might be subjected. The case of one 
 would be assigned to the jurisdiction of a justice of the 
 peace, and the case of the other to the jurisdiction of the 
 
 (297)
 
 254-255 SUPREME COURT OF INDIANA. 
 
 The State v. Albertson. 
 
 Circuit Court, because there was a difference of a few 
 cents in the sums they had lost or won. Beside this, by 
 the 77th sec. of the same act, "all criminal prosecutions, 
 where the penalty shall not exceed three dollars, shall be 
 commenced within thirty days next after the offence is 
 committed;" while the general limitation of criminal 
 prosecutions is two years (2); so that a division of this 
 ofi'ence between the two jurisdictions, would place the 
 cases of difierent persons, who might be guilty of this 
 ofi'ence, under difierent acts of limitation ; whereby they 
 might be very difiereutly afiected when there might be 
 but a shade of difi'erence in their criminality; and this 
 difierence in the acts of limitation, if they are both ap- 
 plicable to this offence, dependent on the sum lost or 
 won as to which shall embrace any particular case, would 
 greatly increase the difiiculty of convicting persons who 
 might be guilty of this offence. We therefore think 
 that it was the intention of the legislature to give exclu- 
 sive jurisdiction of this offence to the Circuit Court, 
 and that the indictment in this case should not have been 
 quashed. The case of The State v. M'Coy has been re- 
 ferred to as supporting a contrary rule of construction 
 (3). But that case is predicated upon peculiar expres- 
 sions in the act of assembly regulating the jurisdiction 
 of justices of the peace; which necessarily requires a 
 peculiar construction, and one that should not be ex- 
 tended beyond the express requirements of that act; and 
 more especially as that act has been questioned, as well 
 on the ground of policy as of constitutionality. But al- 
 though that (b'cision recognizes a discretionary juris- 
 diction in justices of the peace in cases of assault and bat- 
 tery, yet that jurisdiction is not exclusive, even to the 
 amount of three dollars. The Circuit Court has jurisdic- 
 tion in all such cases, if they have not been adjudicated on 
 
 and finally determined by the justice of the peace. 
 [*255] ^Per Curiam. — The judgment is reversed with 
 
 costs. Cause remanded, &c. 
 (298)
 
 MAY TERM, 1829. 255 
 
 Vattier, Assignee v. Roberts. 
 
 Whitcomb, for the state. 
 Caswell, for the defendant. 
 
 (1) Ace. R. C. 1831, p. 195, sec. 77. 
 
 (2) Ace. R. C. 1831, p. 195, sec. 83, 84. 
 
 (3) Ante, p. 5. 
 
 Vattier, Assignee, v. Roberts. 
 
 Corporation — Contract — Liability of Members, — The members of an 
 incorporated company assumed the name of " The Aurora Associa- 
 tion for Internal Improvement ; " and in that name, by their agent, exe- 
 cuted a title-bond for a lot in the town of Aurora. Held, that the bond 
 was not obligatory on the members of the company, and was consequent- 
 ly not a valid consideration for a note given for the price of the lot. 
 
 ERROR to the Dearborn Circuit Court. 
 
 Blackford, J. — Assumpsit on four promissory notes, 
 payable at a future period to IN^orris, agent to the Aurora 
 association for internal improvement, for the use of said 
 association ; which notes were assigned by Norris to Vat- 
 tier. Pleas, 1st, non-assumpsit; 2d, actio non, because 
 the notes were given in consideration of a supposed legal 
 liability, on the part of the individuals forming the Au- 
 rora association, to make the defendant a warranty deed 
 for a lot in Aurora; and the individuals forming the said 
 association were not legally bound to make the deed as 
 aforesaid. There are no replications to the pleas. After 
 the notes had been proved, the defendant gave in evidence 
 the following writing: "This shall oblige the Aurora as- 
 sociation for internal improvement, by themselves or their 
 trustees, to make or cause to be made unto Aaron Rob- 
 erts, or unto his heirs, &c., a deed of conveyance in fee 
 simple with general warranty, for lot numbered 104 in 
 the town of Aurora, provided 51 dollars of the purchase- 
 money therefor are paid in eight months, and the balance 
 in five years from this date, otherwise this obligation to 
 
 (299)
 
 255-256 SUPREME COURT OF INDIANA. 
 
 Vattier, Assignee, v. Roberts. 
 
 be void and of no efi'ect. The deed to be made as soon 
 as the purchase-money therefor is paid, under the penalty 
 of 1,000 dollars. Witness my hand and seal, April 
 [*256] 30th, 1819. *By order of the Aurora association 
 for internal improvement. (Signed) Richard Nor- 
 ris, agent." 
 
 The defendant proved by Norris, that this was the only 
 writing given by him, or said association, to the defend- 
 ant as evidence of the purchase of the lot. The witness, 
 on being questioned by the defendant, said that his ap- 
 pointment as agent was in writing; but that he could not 
 recollect whether the appointment w-as signed by all the 
 individuals of the association, or only by the president 
 and clerk of the meeting. There was no other testimony 
 of his appointment. The plaintifl" called upon the Court 
 to charge the jury, that it rested upon the defendant to 
 show that Norris was not authorized by the association, 
 or by the individuals composing it, to execute the said 
 writing and bind them by the same. Whereupon the 
 Court charged the jury that no authority wdiatever, given 
 by the said association, by the name of the Aurora asso- 
 ciation for internal improvement, to the said Norris, could 
 authorize or enable him to bind the association, as, by 
 their said name of the Aurora association for internal im- 
 provement, in and by said writing he has attempted to 
 do ; or would make the said writing obligatory upon the 
 association. The jury gave a verdict for the defendant; 
 and there was judgment accordingly. 
 
 The plaintiff contends that the Court below coinmitted 
 an error in refusing the instructions asked for, and in giv- 
 ing those which were given. 
 
 We can discover no error in these proceedings. The 
 circumstances of the Aurora association's boino- bound to 
 execute a warranty deed to the purchaser, R()l)erts, for 
 the lot, was the consideration of the notes upon which this 
 action was founded. The instrument of writing given by 
 Norris, did not bind the association, no matter what his 
 
 (300)
 
 MAY TERM, 1829. 256-257 
 
 Pegg and Another v. Capp, in Error. 
 
 authority may have been. The company was not a cor- 
 poration, and the members could not bind themselves by 
 the special denomination of "The Aurora association," to 
 execute a conveyance : a fortiori, an agent could not so 
 bind them. The obligation, to have been valid against 
 the association, should have been executed by all the in- 
 dividual members, either personally or by their agent. 
 This was not done, and the notes consequently stand with- 
 out any valid consideration to support them. 
 
 HoLMAN, J. was absent. 
 [*257] ^Per Curiam. — The judgment is affirmed with 
 costs. To be certified, &c. 
 
 Dunn, for the plaintiff. 
 
 Caswell, for the defendant. 
 
 Pegs and Another v. Capp, in Error. 
 
 SuBPCENA — Return. 
 
 THE return to a subpoena in Chancery against Abner 
 M'Carty and John Pegg was as follows: "Executed on 
 Abner M'Carty the 25 March, 1826. John Pegg, not 
 found, 20 March, 1826— i?. John, sh'ff." A decree, re- 
 citing that it appeared to the satisfaction of the Court 
 that the subpoena had been duly executed, was entered 
 against the defendants jpro confesso. Held, that the return 
 was insufficient to authorize a decree. 
 
 The State r. Hailstock, in Error. 
 
 Assault with Intent — Indictment. 
 
 AN indictment for an assault with intent to commit a 
 felony must show with certainty the particular felony in- 
 tended to be committed. 
 
 (30iy
 
 257-258 SQPREME COURT OF INDIANA. 
 
 Sheets i'. Ferguson and Others, in Chancery. 
 
 A common assault is not an indictable otfence. It is 
 punishable, however, by a justice of the peace (1). 
 
 (1) A common assault is, at common law, an indictable offence. 4 Bl. 
 Coram. 216. Here, by statute, justices of the peace have exclusive jurisdic- 
 tion of offences to which the affixed penalty does not exceed three dollars; 
 and a common assault is an offence of tl at kind. E. C. 1831, pp. 193, 195. 
 An assault with intent to commit a felony, is an indictable offence, and 
 punishable by imprisonment in the state prison for any term of time not 
 exceeding fourteen nor less than two years, and by fine not exceeding 1,000 
 dollars. Id. p. 186. 
 
 Sheets v. Ferguson and Others, in Chancery. 
 
 THE opinion in this case is overruled. Vide the order 
 of the Court, on the report of the commissioner, in the 
 case of Bruner and Others v. Manville and Others, May 
 term, 1832^ post. 
 
 [H<258] *Ray and Another v. Roe, on the Demise of Brown. 
 
 Fraudulent Conveyance— Subsequent Creditor. — The pendency of an 
 action of slander does not, of itself, render the defendant's sale and con- 
 veyance of real estate void as to the plaintifT; though a judgment be 
 afterwards recovered against the defendant, and he have no other proper- 
 ty to satisfy the debt (a). 
 
 Same — Pendente Lite — Notice. — The pendency of an action is construc- 
 tive notice of the matter involved in that suit ; and a purchaser of the 
 property which is the immediate object of the pending action wil' be 
 affected by it, as a purchaser with notice (6). 
 
 ERROR to the Union Circuit Court. — Ejectment by 
 Roe, on the demise of Brown, against W. Ray and D. 
 Ray. Plea, not guilty. Verdict and judgment for the 
 plaintiff. 
 
 Scott, J. — This was an action of ejectment in the Union 
 Circuit Court, We have no information by what kind 
 of title the lands in controversy were claimed by either 
 
 («) 16 Ind, 172 ; 42 ia. 375 ; 35 Id. 170. (6) 35 Id. 170. 
 
 (302)
 
 MAY TERM, 1829. 258-:259 
 
 Ray and Another v. Roe, on the Demise of Brown. 
 
 party. The only point referred to our adjudication, is 
 the correctness of the charge given by the Court to the 
 jury. The Court instructed the jury, that a transfer of 
 property, made by a defendant during the pendency of 
 an action of slander against him, and before the rendition 
 of judgment, is of itself fraudulent; unless it be made in 
 performance of a prior contract, or in payment of a pre- 
 cedent bona fide debt; that all purchasers are bound to 
 take notice of the pendency of said suit; and that if a 
 purchase be made during the pendency of such action, 
 whether with or without consideration, it is considered 
 fraudulent in law as to the judgment plain tifi"; unless 
 there is other property sufficient to satisfy the judgment. 
 To this instruction the defendants except. 
 
 On the broad ground that fraud vitiates all contracts, a 
 conveyance made with design to avoid the payment of a 
 just debt, or to defeat the recovery of a pre-existing right, 
 is void as it respects creditors; and the pendency of a 
 suit is one of the many badges of fraud, which would in- 
 duce a Court of equity to set aside such conveyance, or a 
 jury to regard it as a nullity, in a trial at law. The pen- 
 dency of an action is constructive notice of the matter in- 
 volved in that suit, and a purchaser of the property which 
 is the immediate object of the pending action will be 
 afiected by it, as a purchaser with notice. But a lis pen- 
 dens is not even constructive notice of any other 
 [*259] points than *those which are in dispute between 
 the parties to such action. 3 Atk. 392; Newl. on 
 Con, 506, 507. So much, then, of the instruction as states 
 that a transfer of property, made during the pendency of 
 an action of slander, is of itself fraudulent, whether with 
 or without consideration; and that ajl persons are 
 bound to take notice of the pendency of such action, in 
 the unqualified manner there expressed ; is unsupported 
 by authority. Not having the evidence before us, we can 
 not say how far these instructions might tend to influence 
 
 (303)
 
 259-260 SUPREME COURT OF INDIANA. 
 
 M'Neely v. Driskill. 
 
 the verdict; but there is reason to presume that the jury 
 might have been misled by them. 
 
 Fer Curiam. — The j udgment is reversed, and the verdict 
 &et aside, with costs. Cause remanded, &c. 
 
 Smith, for the plaintiffs. 
 
 Jf Kinney, Morris, and Perry, for the defendant. 
 
 M'Neely v. Driskill. 
 
 Arrest — Justification — Affidavit. — A. made an affidavit before a 
 justice of the peace, stating that he had lost certain goods, which he be- 
 lieved were concealed in the possession of B. The justice thereupon 
 issued a warrant against B. for larceny. B. was arrested on the warrant 
 and afterwards acquitted. Held, that A.'s affidavit contained no crimi- 
 nal charge, and that he was not therefore liable to B. in an action for a 
 malicious prosecution. 
 
 APPEAL from the AVashington Circuit Court. 
 
 Scott, J. — On the application and affidavit of M'Neely 
 before William Richards, a justice of the peace of Wash- 
 ington county, a search warrant was issued ; and the prop- 
 erty described in the warrant was found in the possession 
 of Driskill. The constable, as he was commanded, ar- 
 rested Driskill and took him, with the property, before 
 Asher Wilcox, another justice of the peace of said county; 
 who, on hearing the cause, adjudged Driskill not guilty 
 and discharged him. Driskill then brought an action on 
 the case for malicious prosecution, and obtained judgment 
 in the Washington Circuit Court ; from which judgment 
 this appeal is taken. 
 
 The appellant lias assigned several reasons for reversing 
 
 the judgment in this case, but one of which we deem it 
 
 necessary to notice. The affidavit made by tlie 
 
 ['-'-260] appellant before '''AYilliam Richards, Escpiire, did 
 
 not authorize the justice to issue the warrantcom- 
 
 plained of. The following is the affidavit: "State of 
 
 G304)
 
 MAY TERM, 1829. 260 
 
 Taylor i. M'C'rackin. 
 
 Indiana, Washington count}', to wit. Be it remembered, 
 that on the 24th day of December, 1827, personally came 
 before me, William Richards, a justice of the peace of said 
 county, Robert M'Neely of said county, and upon his' 
 oath solemnly saith, that he lost out of his enclosure, ia 
 Brown township in said county, five hogs, two sows, an<l 
 three barrows, within fifteen days last past; and that he 
 believes that they, or a part of them, are concealed in the 
 custody of Elisha Driskill, Sen., of Brown township in 
 said county. And further this deponent saith not. — 
 Robert M'Xeely." The action is brought for wrongfully 
 and maliciousiy prosecuting the appellee on a charge of 
 larceny. This affidavit shows a state of facts on which an 
 action of trover might have been maintained, but it con- 
 tains no charge of larceny against any person. The ap- 
 pellant had lost his property, and wished to recover it ; he 
 states that fact to a justice of the peace. The justice forms 
 his judgment upon the facts stated ; he issues his mandate 
 to an officer to search for the property, and to bring the 
 person, in whose possession it may be found, before him- 
 self or some other justice of the peace, &c. This was an 
 error; but it is the error of the justice, and not of the ap- 
 pellant. And if a justice of the peace, by mistake of 
 judgment, conceives an act to be felon}- which is not 
 felony; and in consequence of that mistake, causes an in- 
 nocent person to be arrested and imprisoned ; the law will 
 not hold the person who made the complaint responsible, 
 in this form of action, for the consequence of such errors. 
 3 Esp. Rep. 165. The judgment must be reversed. 
 
 Per Curiam. — The judgment is reversed with costs. 
 
 Thompson, for the appellant. 
 
 Stevens, for the appellee. 
 
 Taylor r. M'Crackin. 
 
 Widow — Dower — Title-Bond — Ejectment. — A. died in possession of a 
 tract of land, which he held by virtue of a title-bond executed by G The 
 
 Vol. II.— 20 (305)
 
 260-261 SUPREME COURT OF INDIAi^A. 
 
 Taylor r. M'Crackin. 
 
 widow of A. remained in possession and married B., who also continued 
 in i)ossession. C. having the legal title, brought an action of disseisin for 
 the premises against B. without having previously demanded the posses- 
 sion. 
 
 [*261] ^'Held, 1st, that though the statute gives to the widow of A. a right 
 of dower in the equitable estate, her claim constituted no defence 
 in law to the action of disseisin brought by C. 
 
 Held, 2d, that the statutory provision — autlorizing the widow to continue 
 in possession of the mansion-house, and the messuage thereto belonging, 
 until her dower is assigned — applies only to the persons claiming under 
 her deceased husband, and not to those claiming by an adverse title. 
 
 Held, 3d, that though a judgment, in the action of disseisin, settles the titles 
 held by the parties at the time of its rendition, it does not prevent the 
 losing party from enforcing a superior title subsequently acquired, nor 
 preclude either of the parties from applying to a Court of chancery to 
 perfect his title, or to enjoin a judgment obtained contrary to equity. 
 
 Held, 4th, that C. could not sustain his action of disseisin against B. under 
 the circumstances of this case, without having previously demanded of 
 him the possession of the premises. 
 
 APPEAL from the Hendricks Circuit Court. 
 
 HoLMAN, J. — William M'Crackin commenced an action 
 •of disseisin against Isaac Taylor, for a tract of land in Hen- 
 dricks county, on the 3d of January, 1829. Taylor pleaded 
 not guilty. He also pleaded that William M'Crackin, who 
 was possessed of the legal title to the said tract of land, 
 bargained and sold the said land to Robert M'Crackin, 
 and executed to said Robert a title-bond for said land 
 This bond is set out in the plea; is dated the 31st of May, 
 1826; is in the penalty of 1,000 dollars, conditioned for 
 the conveyance of the said tract ( f land to the said Rob- 
 ert, his heirs, &c. ; and is under the seal of the said Wil- 
 liam M'Crackin. This plea states that, at the time of ex- 
 ecuting said bond, the said William put the said Robert 
 into peaceable possession of the said land, who continued 
 to reside thereon until the 9th of June in the same year, 
 Avhen he departed this life, leaving Mary M'Crackin, his 
 widow, in peaceable possession ; that said Mary, being 
 entitled to dower in the said land, continued in possession 
 of the mansion-house, and messuage thereunto belonging, 
 situated on the said tract of land: and that while so in 
 
 (306)
 
 MAY TERM, 1829. 261-262 
 
 Taylor v. M'Crackin. 
 
 possession, on the 27th of December, 1827, she intermar- 
 ried with the said Taylor, who, in right of his said wife, 
 still continues in possession of the mansion-house and 
 messuage aforesaid, dower of the said hxnd not having 
 been assigned to the said Mary, nor to the said Taylor. 
 To this plea there was a demurrer; which was correctly 
 sustained; not onh' for the cause of demurrer assigned, 
 
 viz., that the act of assembly authorizing this ac- 
 [*262] tion contemplates the wdiole case to *be tried on 
 
 the issue of not guilty ; but also because the sub- 
 ject-matter of the plea is not a legal bar to this action. 
 
 The claim by which Robert M'Crackin, in his life-time, 
 held this land, was only an equitable title; and although 
 the act of assembly provides that the widow shall be en-, 
 do wed of one-third part of all the lands, whether legal 
 or equitable, of which her husband was seized during the 
 coverture; yet when she is endowed of an equitable estate, 
 she receives but a title in equity, which can not be set up 
 at law in bar of a legal title. The act of assembly gives 
 her a legal right to an equitable estate, but it does not 
 convert her equitable estate into a legal one. It still re^ 
 mains a subject of a Court of chancery, and of which a 
 Court of law can not take cognizance. The provision of 
 the act of assembly, that authorizes the w^idow to continue 
 in the mansion-house, and the messuage thereunto belong- 
 ing, until her dower is assigned, relates only to her claim 
 against the heirs, or those claiming the estate under her 
 deceased husband, and does not extend to strangers or 
 persons claiming by an adverse title. The widow, under 
 the act of assembly, has no higher title than the husband 
 had in his life-time. She may maintain her possession 
 of the mansion-house, and the appurtenant messuage, un- 
 til her dower is assigned, by virtue of her husband's title, 
 whether legal or equitable, against any person who claims 
 under the same title; but she is in no better condition to 
 defend her possession, against an adverse or paramount 
 title, than her husband would have been. And it Avill not 
 
 (307)
 
 262-263 SUPKEME COURT OF IXDIAXA. 
 
 Taylor v. M'Crackin. 
 
 be contended that the husband, in his life-time could have 
 defended his possession to these premises, by virtue of 
 this title-bond, against the legal title set up in the declar- 
 ation. If Robert M'Crackin, in his I'fe-time, had a clear 
 equity in this tract of land by virtue of this contract, he 
 might have compelled a specilic performance of the con- 
 tract ; and those claiming under him have the same 
 equitable right to have the contract specifically performed. 
 But until there is a performance of the contract, the law 
 can take no notice of the title to the land created there- 
 by. Porter's heirs v. Robinson, 3 Mar. 253. 
 
 It is contended in support of this plea that, if it is not 
 allowed, the right of dower in this case will be perpet- 
 ually barred ; inasmuch as the act of assembly declares, 
 that the judgment in an action of disseisin shall 
 [*263] be conclusive upon the parties, and *shall be a 
 bar to another suit for the same cause, upon titles 
 held by them at the time of such judgment. There is 
 nothing here to alfect this right of dower, if Robert 
 M'Crackin in his lifetime had an equitable title to this 
 land. The judgment in the action of disseisin is conclu- 
 sive on the parties, in the same manner as judgments in 
 personal actions and in writs of right. Under the act of 
 assembly, the judgment settles the controversy between 
 the parties, about the titles held by them at the time it is 
 rendered; but if the losing party should afterwards ac- 
 quire a superior title, he is not barred h\ the judgment 
 from enforcing that title in another action. But this 
 clause in the act of assembly, has no bearing upon the 
 right that either party has to tlie interposition of a Court 
 of chancery in his behalf, in order to perfect his title, or 
 to enjoin proceedings on a judgment obtained contrary 
 to equity. 
 
 The evidence given in this case is set forth in a bill of 
 exceptions, from which ii appears that Robert M'Crackin 
 was the son of William M'Crackin, and was in possession 
 of the land in controversy with the knowledge and con- 
 
 730,S) ■
 
 MAY TERM, 1829. 263-264 
 
 Taylor v. M'Crackin. 
 
 sent of his father; that he improved the land, and con- 
 tinued in possession for several years, and until the time 
 of his death, without the payment of rent; that his widow 
 continued in possession, and enjoyed the land, until her 
 intermarriage with Taylor; and that Taylor lived with 
 his said wife on the land, and still continued to hold pos- 
 session. There was no proof of notice to quit, or demand 
 of the possession, before the commencement of this action ; 
 and the Court instructed the jury that three months' 
 notice to quit was unnecessary. On th£ trial, Taylor 
 offered in evidence to the jury the bond from William 
 M'Crackin to Robert M'Crackin, for the conveyance of 
 said tract of land as set forth in his plea: the execution 
 of which bond was proved by one of the subscribing wit- 
 nesses. And although, as the bill of exceptions states, it 
 was admitted that Robert M'Crackin was in possession 
 of the land when the bond was executed, and continued 
 in possession until his death, and that his widow held 
 possession until her intermarriage with Taylor, and that 
 Taylor ever since continued in possession, yet the Circuit 
 Court rejected the evidence, and would not permit the 
 bond to go to the jur3^ 
 
 The plaintiff obtained a verdict for damages, on 
 [*264] which a ^judgment was rendered for the pos- 
 session of the premises, and the damages assessed 
 by the jury. 
 
 It is here contended that the judgment is erroneous, in- 
 asmuch as there was no notice to quit, nor any demand 
 of the possession, prior to the commencement of the ac- 
 tion. On this subject there is some uncertainty. The 
 act of assembly authorizing this action is silent on the 
 subject of notice to quit, or demand of the possession of 
 the disseisor, or person in possession; and the general 
 tenor of the act of assembly and the nature of the action 
 of disseisin, seem to lead to e idea that no notice is nec- 
 essary. But when we consider the consequences that 
 may result to tenants in possession from this ^,onstruc- 
 
 (309)
 
 264-265 SUPREME COUPvT OF INDIANA. 
 
 Taylor v. M'Crackin. 
 
 tiou, we feel unwilling to admit it in its full extent. The 
 act of assembly states that the remedy, provided by this 
 action, shall embrace all the various remedies known to 
 the common law for enforcing the deliver}' of possession 
 or seizure of lands, &c. ; but we presume it was the inten- 
 tion to embrace those various remedies with some degree 
 of consistency. Although it may embrace some of the 
 advantages of both a real and a mixed action, and be 
 founded on the right of property as well as the right of 
 possession ; yet "we can not consider the defendant as a 
 wrong-doer, and demand damages and costs against him, 
 while resting for support upon mere right, as in a writ 
 of right, when neither damages nor costs are recovered. 
 At common law a disseisor was a wrong-doer; for if he 
 was recognized as in possession as a tenant in any capac- 
 ity, the action would not lie; and the action of ejectment 
 will not lie against a tenant at will, until the will of the 
 landlord is determined; 2 Stark. Ev. 530; and we think 
 it inconsistent with the principles of justice to subject a 
 man to costs of suit for holding lands of which he has no 
 reason to suppose the owner wants possession. We there- 
 fore think the doctrine of notice to quit, and demand of 
 possession, is applicable to this action as to the action of 
 ejectment, and we shall consider the subject accordingly. 
 The act of assembly, respecting the notice that is to be 
 given to tenants for years or at will holding over, is not 
 applicable to this case, as here is no rent reserved ; nor has 
 this case any features that will enable us to recognize it 
 
 as such a tenancy as requires notice to quit, to be 
 [*265] given any particular length of *time before .the 
 
 action is brought. But as Robert M'Crackin was 
 in peaceable possession, with the knowledge and consent 
 of William M'Crackin, and as Taylor continued to hold 
 the premises by virtue of Robert M'Crackin's possession, 
 we can not look upon Taylor as a wron-gdoer, which is 
 subject to an action without any notice or demand what- 
 ever. Taylor, as to his possession, stands in the same re- 
 
 (310) :
 
 MAY TERM, 1829. 265 
 
 Taylor r. M'Crackin. 
 
 lation to William M'Crackin that Robert M'Crackin did 
 in his life-time ; and it would seem contrary to the prin- 
 ciples of justice to have subjected Robert M'Crackin to 
 this action, before the possession had been demanded and 
 refused. Here has been an unmolested possession for 
 about live 3'ears, with the knowledge and consent of the 
 owner of the land, which would certainly place the posses- 
 sor in the condition of a tenant at will, who would not be 
 liable to an action of ejectment, until he had received ex- 
 press evidence that the owner of the land had determined 
 his will, either by a notice to quit, a demand of posses- 
 sion, or by some other act that would determine the ten- 
 ancy. 2 Stark. Ev. 530. 
 
 Directly connected with this subject is the title-bond 
 for this land that was oftered in evidence and rejected. 
 This bond was inadmissable as a bar to the action, but it 
 was important to show in what character Taylor held the 
 possession of his land; and taking the bond as it appears 
 on its face, in connection with the other testimony, it 
 presents conclusive evidence that he was not in possession 
 as a trespasser or disseisor, but that he held a possession 
 which a Court of chancery would guaranty, by compell- 
 ing a specific pe formance of the contract under which he 
 claimed; and surely he had a right to show by that con- 
 tract, that he was entitled to at least a demand of the 
 possession before he could be subject to this action. In the 
 case of Right v. Beard, 13 East, 210, the plaintiff put the 
 defendant into possession under a contract of sale, and 
 shortly afterwards commenced an action of ejectment 
 against him. The plaintiff was non-suited ; the Court 
 holding that as the defendant was put in possession by 
 virtue of a contract, he was not liable to the action until 
 the possession was demanded. See also the same principle 
 in the cases o^ Jackson v. Bryan, 1 Johns. 322; Jackson v. 
 Rowan, 9 Johns. R. 330. But if the defendants, in 
 these cases, had been precluded from proving the con- 
 tracts bv virtue of which they entered, they must 
 
 (311)
 
 266 SUPREME COURT OF INDIANA. 
 
 Logan II. Siggerson. 
 
 [*266] *have been considered as wrong-doers, and com- 
 pelled to pay the costs of suit, without notice to 
 quit, or demand of possession. We think, therefore, that 
 Taylor had a right to show the nature of the contract by 
 virtue of which he was in possession ; and for this purpose, 
 the bond should have been admitted in evidence. 
 
 Per Curiam. — The judgment is reversed, and the verdict 
 set aside, with costs. Cause remanded, &c. 
 
 Brown and Hester, for the appellant. 
 
 Fletcher and Gregg, for the appellee. 
 
 Logan v. Siggerson. 
 
 Trespass — Judicial Act — Pleading. — Trespass de bonis asportatis. Plea, 
 that the defendant, as a justice of the peace had entered a fine against 
 the plaintiff for an assault committed by him in the defendant's pres- 
 ence. Held, on demurrer, that the plea was bad, because it did not show 
 bat that the fine was imposed in the offender's absence. 
 
 APPEAL from the Marion Circuit Court. 
 
 Scott, J. — The appellee, who was plaintiff in the Circuit 
 Court, declared against the appellant in an action of tres- 
 pass for tortiously taking tliree saws and converting them 
 to his own use. The defendant pleaded the general issue, 
 which was afterwards withdrawn. He also pleaded speci- 
 ally, that at the time when, &c., he was an acting justice 
 of the peace, and had full power and authority to inquire 
 into, and in a summary way to punish by tine not exceed- 
 ing three dollars, all trivial breaches of the peace, and to 
 give judgment and award execution ; that at the time 
 when, &c., by consideration and judgment of the said de- 
 fendant as justice of the peace, it was adjudged that the 
 state of Indiana should recover against the said plaintiff 
 the sum of two dollars as a tine, and fifty cents as costs, 
 for an assault which he, the said plaintiti', had, in the pres- 
 ence and view of the said defendant, committed on the
 
 MAY TERM, 1829. 266-267 
 
 Logan V. Siggerson. 
 
 body of one William Logan, &c. ; that he issued execu- 
 tion, and that the goods in the declaration mentioned 
 were levied on and sold, &c. To this plea the plaintiff 
 replied, that William Logan who, it is alleged, was 
 assaulted, and William Logan the defendant who 
 [*267] as *a justice of the peace imposed the fine, are one 
 and the same person, and that the said assault was 
 not committed upon the said William Logan, when he 
 was in the execution of his office as a justice of the peace. 
 General demurrer to this replication, and joinder. De- 
 murrer overruled. Writ of inquiry and final judgment 
 for the plaintiff. 
 
 The plea is defective. It was not enough that the de- 
 fendant should show, in his plea, that he had authority to 
 impose a fine for an assault. He should have shown, also, 
 that he had caused the offender to be brought before him, 
 and had thus obtained jurisdiction of the person, as well 
 as of the crime. For aught that appears in the plea, the 
 fine might have been imposed in the absenca of the of- 
 fender, and without any notice to him of the amount of 
 the fine, or even of its existence, till he was visited by the 
 officer with the execution in his hand. The replication 
 is defective also; but the plea being bad, the defendant 
 could not take advantage of it. The demurrer carries us 
 back to the first error. Setting aside the parts which are 
 defective, nothing remains but the declaration ; and, as 
 the plaintiff' has the judgment below it must stand. 
 
 Pe7' Curiam. — The judgment is affirmed with 1 per cent. 
 damages and costs. 
 
 Fletcher, for the appellant. 
 
 Wick^ for the appellee. 
 
 (313)
 
 267-268 SUPREME COURT OF INDIANA. 
 
 Louisville and Portland Canal Company v. Holborn, in Error. 
 
 Louisville and Portland Canal Company v. Holborn, in 
 
 Error. 
 
 Replevin — Custody of Law (a). 
 
 A., to whom B. was indebted, levied an attachment on 
 certain goods as B.'s property. C, the owner of the goods, 
 brought an action of replevin against A. and recovered 
 
 (1) Replevin lies in such cases as that in the text ; and it is no objection 
 to the action that the goods are in the custody of the law. Chinn v. Rus- 
 sell, ante, p. 172, and note (3). 
 
 [*268] *Markle and Another v. Rapp and Others, in 
 
 Error. 
 
 Mortgage — Foreclosure — Remedy (6) . 
 
 A PERSON, liolding a bond and mortgage for a debt, 
 may proceed first by an action on the bond, and subject 
 all the debtor's property both real and personal to his 
 judgment, without abandoning his lien on the mortgaged 
 premises, unless he have taken them in execution. But 
 if the creditor elect to proceed first on his mortgage, he 
 is obliged by the statute of 1824 to rely alone on the 
 mortgaged premises for a satisfaction of his demand (1). 
 
 (1) This statute of 1824 is repealed. Vide note to Youse v. AVOreury, 
 ante, p. 246. As to the law on the subject, independently of the statute, 
 vide Stevens v. Dufour, Vol l,of these Rep. 387. 
 
 Chinn and Another v. Perry, 
 
 Witness — Competency — Value. — Goods were taken in execution ; and 
 a delivery-bond payable to the execution-plaintiff was executed by the 
 debtor and his surety, conditioned for the delivery of the property in as 
 
 (a) 6 Blkf. 136 ; 4 Id. 304. (b) 13 Ind. 75. 
 
 (314)
 
 MAY TERM, 1829. 268-269 
 
 Chinn and Another v. Perry. 
 
 good order as it was at the date of the bond. Debt on the bond. Breach, 
 the non-delivery of the property in as good order as it was when then the 
 bond was executed. Demurrer to the decLaration and judgment for the 
 plaintiff. 
 JJekl, on the execution of the writ of inquiry, that the sheriff was a compe- 
 tent witness to prove the value of the property. Held, also, that, in the 
 absence of all testimony as to the value of the property, the amount of 
 the execution was the proper measure of damage. Held, also, that the 
 qiumlum of damages sustained by the plaintiff for the breach of contract, 
 M'as the only subject of inquiry before the jury. 
 
 ERROR to the Decatur Circuit Court.— This was an 
 action of debt by Perry against Chinn and Parks, founded 
 on a delivery-bond payable to Perry, the execution-plain- 
 tiff. 
 
 HoLMAN, J. — Declaration on a bond for the delivery of 
 property taken in execution. The undertaking in the 
 condition of the bond was, to deliver the property "in as 
 good order as it then was." The breach, inte)^ alia, is, 
 that the property was not delivered, nor any part thereof, 
 ^'in as good order" as it was at the date of the bond. 
 Demurrer to the declaration. Demurrer overruled, interlo- 
 cutory judgment given, and writ of inquiry award- 
 {^269] ed. The sheriff, by whom the property was *taken 
 in execution, and by whom the delivery-bond was 
 taken and attested, was introduced, on the inquest of dam- 
 ages, to prove the value of the property. The defendants 
 objected to his admission on the ground of his incompe- 
 tency, but he was admitted by the Court; to which opin- 
 ion of the Court the defendants excepted. The defend- 
 ants moved the Court to instruct the jury of inquest, that 
 if the property was delivered at the time and place men- 
 tioned in the bond, but not in good order, then the proper 
 measure of damages to be assessed was the difference be- 
 tween the value of the property at the time the bond was 
 executed and the time of the deliver}'. This instruction 
 the Court refused to give, but instructed the jurj' that 
 they were not impaneled to say whether the propert}' was 
 delivered or not; but simply to inquire what damages the 
 
 (315)
 
 269-270 SFPREME COURT OF INDIAXA. 
 
 Shelmire v. Thompson and Others. 
 
 phiiiitift" had sustained by the non-delivery; and that 
 whether the property was delivered pursuant to the con- 
 dition of the bond, or whether it was delivered in good 
 order, were not questions in issue before the jury. To 
 this opinion, also, the defendants excepted. There was an 
 assessment of damages, and a judgment for the plaintift'. 
 
 The defendants in the Circuit Court, the plaintifls in 
 this writ of error, rely upon the admission of the sherift" 
 as a witness, and the instructions of the Circuit Court to 
 the jury, being the errors assigned for a reversal of this 
 judgment. But there is no error in the proceedings. The 
 sheriff was not interested, and of course was a competent 
 Avitness. He was the subscribing witness to the bond, 
 and would have been competent to prove its execution. 
 There was nothing he could gain or lose, by the result of 
 his testimony, as to the value of the property. Besides, 
 in the absence of all testimony as to the value ot' the prop- 
 erty, the amount of the execution was the proper meas- 
 ure of damages (1), The instructions of the Circuit Court 
 to the jury are unexceptionable. The demurrer admitted 
 the non-delivery of the property in as good order as it 
 was in when the bond was executed, and a delivery in no 
 other order would have been a compliance with the un- 
 dertaking. The damages sustained by the plaintiff on 
 account of the non-delivery was the only subject before 
 tiie jury. 
 
 Per Curiam. — The judgment is affirmed, with 5 per cent. 
 damages and costs. 
 [*270] *TT7rA-, for the plaintiffs. 
 Stevens, for the defendant. 
 
 (1) Tide M'Coy v. Elder, ante, p. 183, and note. 
 
 Shelmire r. Thompsox and Others. 
 
 Keformatiox — Kes Adjudicata — IxjrxGTiON". — A. B. and C. executed a 
 note to D. for the pavment uf monev. The name of C. was afterwards 
 
 (316)
 
 MAY TERM, 1829. 270-271 
 
 Shelmire r. Thompson and Other-:. 
 
 erased without tlie knowledge of the other obligors, and a judgment ob- 
 tained against A. and B. A bill was filed by A and B. in order to have 
 the judgment enjoined, averring their ignorance of the erasure at the 
 time of the trial at law. Held, that the erasure was a defence purely 
 legal, and that the complainants' ignorance of the erasure as averred, 
 was no ground for the interposition of a Court of chancery (a). 
 
 APPEAL from the Martin Circuit Court. 
 
 HoLMAX, J. — Thompson, Allen, and Conner, iiled a bill 
 in chancer}' in the Martin circuit Court, praying relief 
 by injunction against a judgment at law, obtained against 
 tliem and others by E. Shelmire. The bill states that on 
 the 30th of January, 1821, F. Sholts was indebted to E. 
 Shelmire, who is made defendant to the bill, in the sum 
 of 704 dollars and 41 cents, for which sum Sholts and the 
 complainants, together with J. Johnson and divers others, 
 executed their joint and several note under seal ; on which 
 note suit was afterwards instituted, and a judgment ob- 
 tained against all the obligors, except Johnson and one 
 who had died ; and although it appears by the record that 
 D. Hart, Esq., appeared in behalf of the defendants in 
 said suit, yet they never did employ him or any other per- 
 son to appear for them. The complainants also state that 
 they would not have executed said note, as the sureties of 
 Sholts, had not all the other sureties, including Johnson, 
 joined in its execution, and that Johnson did sign and 
 seal said note; but that the name of Johnson was after- 
 wards designedly erased, without their knowledsre or con- 
 sent, by some person to them unknown, whereby the note 
 became null and void, and not their note, as they are ad- 
 vised and believe ; that at the time of the trial at law, 
 they did not know that the signature and seal of Johnson 
 had been erased, nor that he was not a co-defendant with 
 
 them : and that if they had known that fact, they 
 ["^271] would *have defended the action at law. They 
 
 require the defendant's answer, particularly as to 
 tlie erasure, and the person by whom it was done; and 
 
 (a) 12 Ind. 42. 
 
 (317)
 
 271 SUPREME COURT OF INDIANA. 
 
 Shelmire v. Thompson and Others. 
 
 tlioy pray an injunction, which was granted. The defend- 
 ant, in answer, denies all knowledge of when, how, by 
 whom, or for what purpose the erasure was made, and 
 claims all legal advantages. C. R. Brown, one of the ob- 
 ligors against whom the judgment Avas given, and who 
 the defendant contends is an incompetent witness, deposes, 
 that the defendant put this note into his hands, among 
 others, to be put in suit; that, after looking at the note, 
 he informed her that Johnson was sheriflt", and another of 
 the obligors coroner, so that there was no person to serve 
 process; that she remarked that Johnson was good for 
 nothing, and she would scratch his name oft"; but he ad- 
 vised her not to do so without the knowledge and consent 
 of all the obligors, and left the note with her; that, in tlie 
 evening of the same day, the note came to him from tiie 
 defendant, with directions to commence suit on it im- 
 mediatel}' ; and at that time the name of Johnson had 
 been obliterated by drawing a pen over it. From the rec- 
 ord in the suit at law, it appears that D. Hart appeared 
 as counsel for the defendants, and had oyer of the note. 
 The Circuit Court decreed a perpetual injunction of the 
 judgment at law, as to the complainants; but the decree 
 was not in any manner to aftect the other judgment-de- 
 fendants. The defendant appealed to this Court. 
 
 We see no principle in equity by which this decree can 
 be supported. The case presents no ground of relief. 
 Admitting all the complainants have stated in tlioir own 
 favor, taken in the strongest point of view, they have not 
 made out a case in which a Court of chancer}^ can inter- 
 pose. If their character as sureties would, under the cir-. 
 cumstances of the case, entitle them to any particular in- 
 dulgence; and if they did not employ counsel to defend 
 the suit at law, and are not bound by the acts of their co- 
 defendants, who perhaps employed counsel in their be- 
 lialf; and if, as they insinuate b}^ their witness, the era- 
 sure was made by the appellant, or with her knowledge 
 and consent; still their claim to relief in equity is un- 
 
 (318)
 
 MAY TERM, 1829. 271-272 
 
 Sheimire v. Thompson and Others. 
 
 founded. Their right to bar a recovery on this note on 
 account of the erasure of Johnson's signature is purely le- 
 gal ; and, except as to Johnson's proportion of the amount 
 of the note, it exists in law without a shadow of. 
 [*272] equity. But even if this judgment were ^^contrary 
 to equity, the reasons assigned for not defending 
 at law, are wholly insufficient to authorize the relief re- 
 quired. A Court of chancery will not relieve against a 
 judgment contrary to equity, unless the defendant in the 
 judgment was ignorant of the fact in question pending 
 the suit at law, or it could not have been received as a 
 defence, or unless he was prevented from availing him- 
 self of the defence by fraud, or accident, or the act of the 
 0[)posite party, unmixed with negligence or fault on his 
 part. The cases which support this principle are numer- 
 ous. We will only mention Cowan v. Price, 1 Bibb, 173; 
 Lansing v. Eddy, 1 Johns. Ch. E. 49; Duncan v. Lyon, 3 
 Johns. Ch. R. 351 ; Foster v. Wood, 6 Johns. Ch. R. 87. In 
 this case nothing is alleged, as a reason for not defending 
 at law, but ignorance of the erasure. There is nothing 
 to excuse this ignorance. It was occasioned by negli- 
 gence alone. And we know of no principle or precedent 
 that authorizes relief. The decree must be reversed and 
 the bill dismissed. 
 
 Per Curiam. — The decree is reversed with costs. Cause 
 remanded, with directions to the Circuit Court to dismiss 
 the bill, &c. 
 
 Law and Kinney, for the appellant. 
 
 Judah and Dewey, for the appellees. 
 
 END OF MAY TERM, 1829. 
 
 (319)
 
 [*273] * CASES 
 
 ARGUED AXD DETERMIN"ED 
 
 IN THE 
 
 SUPREME COURT OF JUDICATURE 
 
 OF THE 
 
 STATE OF INDIANA, 
 
 AT INDIANAPOLIS, NOVEMBER TERM, 1829, IN THE FOURTEENTH YEAR OF 
 
 THE STATE. 
 
 Dougherty v. Humpston, on Appeal. 
 
 Specific Performance — Discretion — Equity Practice (a). 
 
 A. SOLD to B. a tract of land, and gave him a title- 
 bond conditioned for the execution of a deed for the land, 
 when a patent for the same should be obtained from the 
 United States. A. had paid to the United States one- 
 fourth of the purchase-money. B. executed his notes to 
 A. for the price of the land, payable part in labor and 
 part in money, and agreed to complete the payments due 
 to the United States on the land. A. afterwards assigned 
 the land-ofRce certificate for the land to C, who had 
 notice of B.'s title-bond; and C. paid the balance of the 
 purchase-money due to the United States, and obtained a 
 patent for the land. B. filed a bill iii chancery against 
 C, setting out the above facts; averring a performance 
 of the labor, and a payment of part of the money payable 
 
 («) 6 Ind. 259. 
 
 (320)
 
 NOVEMBER TERM, 1829. 273-2T4 
 
 Sheets v. Andrews. 
 
 to A.; and praying for a conveyance of the land. Held, 
 that as the bill did not show a payment or tender of all 
 the money payable to A. by the contract, and a payment 
 or tender to C. of the balance of the purchase-money 
 paid by him to the United States, it should be dismissed 
 for want of equity. 
 
 A bill for a specific performance of a contract, 
 [*274] is addressed *to the discretion of the Court; and 
 it should always show that the complainant had 
 done all which could be equitably required of him. 
 
 When a conveyance is decreed to be executed in such a 
 case, the usual form is, to require the person who has the 
 legal title to execute the conveyance, if he is of legal dis- 
 cretion and within the jurisdiction of the Court. 
 
 Sheets v. Andrews. 
 
 Contract — Performance — Demand. — If the owner of real estate covenant 
 to make a title to it on payment of the purchase-money, and the same be 
 afterwards paid, the obligor is not liable to an action for not conveying, 
 unless the deed have been previously demanded. 
 
 Qucere, whether the purchaser, in such case, should tender the de^d to the 
 vendor for execution. 
 
 Warranty — Breach — Damage. — In the case of a breach of the covenant 
 of seisin, or of warranty, contained in a conveyance of real estate, or of a 
 breach of a covenant to convey, the measure of damages, if there be no 
 fraud, is the purchase-money with interest (a). 
 
 APPEAL from the Jefferson Circuit Court. 
 
 Blackford, J. — This was an action of covenant, by An- 
 drews against Sheets, on the following obligation: "I 
 hereby promise and oblige myself, my heirs or legal rep- 
 resentatives, to convey unto Stephen Andrews, his heirs 
 or assigns, by general warranty deed of conveyance, lots 
 numbered 96, 97, 101, 129 and 130, in the additional plat 
 of the town of Vevay, Indiana, on or before the 3d of 
 
 (a) 7 Ind 450. 
 
 YoL II.— 21 (321)
 
 274-275 SUPREME COURT OF INDIANA. 
 
 Sheets v. Andrews. 
 
 May, 1820, or so soon thereafter as payment shall be 
 made in full for said lots, agreeably to three several notes 
 given for the same, bearing even date with these presents 
 at six, twelve, and eighteen months, with interest from 
 the date if not punctually paid. Given under my hand 
 and seal the 3d day of November, 1818. — John Sheets, 
 (Seal)." The declaration avers payment of the purchase- 
 money on a certain day, before the commencement of the 
 suit; and alleges that the defendant, although often re- 
 quested, had not made the conveyance. To this action, 
 Sheets, the defendant below, after obtaining oyer of the 
 obligation, pleaded several pleas in bar; one of which is 
 to the following effect: — That the defendant had been 
 always ready, willing, and able to execute the 
 [*275] ^conveyance agreeably to his covenant; but that 
 the plaintiff' had never requested him to do so. 
 This plea further states that the defendant was still ready, 
 able, and willing to execute the conveyance; and that he 
 had brought it into Court and then tendered it to the 
 plaintiff" for his acceptance. To this plea, as well as to 
 the others, Andrews, the plaintiff' below, demurred gen- 
 erally, and the defendant joined in demurrer. The Cir- 
 cuit Court, considering the pleas no bar to the action, 
 gave judgment on the demurrer in favor of the plaintiff' 
 below. The damages were assessed at 976 dollars and 5 
 cents, being the amount of the purchase-money with in- 
 terest; and final judgment was rendered for that aYnount, 
 together with costs. Sheets, the defendant below, appeals 
 to this Court. 
 
 The validity of the plea, to which we have referred, 
 depends upon a single question. It is this: If the owner 
 of real estate covenant to make a title to it, on "payment 
 of the purchase-money, and the same be afterwards paid, 
 is the obligor liable to an action for not conveying, al- 
 though the deed has not been demanded? The Court 
 has heretofore expressed an opinion, that, in cases of this 
 kind, the plaintiff" might recover without any proof of 
 
 (322)
 
 NOVEMBER TERM, 1829. 275-276 
 
 Sheets v. Andrews. 
 
 such a demand. We have, however, for some thiie, had 
 doubts as to the correctness of that opinion ; and have 
 now, after much reflection, come to the conclusion that it 
 must be overruled. It appears to us to be reasonable, 
 that the parties to these contracts, which are very com- 
 mon in our country, should each have a fair opportunity 
 to perform his part, previously to his being liable to a suit 
 for the non-performance. 
 
 The statute of 1824, pp. 329, 330, rendering bonds like 
 the present, usually called title-bonds, assignable, furnishes 
 a strong reason, were there no other, to show that the 
 bona fide obligor in these cases, having a good title, should 
 not be subject to a suit for not conveying, until he had 
 been called upon for the deed. The title-bond, by means 
 of assignments, may, and frequently does, pass through 
 the hands of many persons, before the payment of the 
 purchase-money by the obligee, according to his contract. 
 It must, consequently, often happen, that neither the ob- 
 ligor nor obligee, at the time of the payment, can know 
 who has the bond and is entitled to the conveyance. In 
 cases so situated, if no previous demand of the deed bo 
 
 necessary, the obligor may have no opportunity 
 [*276] *to prevent an action founded on a breach of hia 
 
 contract, notwithstanding he may have been al 
 ways ready, and able, and anxious, to perform it. The 
 consequence would be that the holder of the bond, not 
 being known to the obligor, might keep it until the prop- 
 erty had become greatly reduced in value, and then re- 
 cover damages to the whole amount of the purchase- 
 money and interest, without the obligor's having had any 
 opportunity to prevent it, by a compliance with his agree- 
 ment. In this way, the holder of the bond could take 
 advantage of his own wrong, to the injury of a bona fide 
 vendor. To avoid this dithculty, Andrews, the defe'ndant 
 in error, contends that the obligor might tender the deed 
 to the obligee, at any time before notice of the assign- 
 ment; which tender would be as effectual as if it were 
 
 (323)
 
 276-277 SUPliEME COURT OF mDIANA. 
 
 Sheets V. Andrews. 
 
 made to the holder of the bond. The answer to this is, 
 that the obligee would always have it in his power to pre- 
 vent the eifect of the tender, by merely informing the ob- 
 ligor at the time — as it would be his duty to do — that the 
 bond had been previously assigned. 
 
 Independently, however, of the statute, making title- 
 bonds assignable, the rule which requires that the deed 
 be denumded in these cases, before the commencement of 
 a suit for not executing it, appears to us to be proper and 
 necessary. It is best calculated to secure the specific ex- 
 ecution of contracts, and to prevent a multiplicity of law 
 suits. Besides, it maybe often a convenience to the pur- 
 chaser, for a variety of reasons, not to receive the title as 
 soon as he is entitled to it; and he may therefore prefer 
 its continuance, for some time, in the vendor. If he can 
 obtain the title to which he has a right, whenever he may 
 choose to demand it, he ought not to complain. There 
 is, indeed, respectable authority for the opinion that it 
 would have been better had the law required a demand 
 previously to a suit, even in cases where money only has 
 been contracted for. The law, it is true, as to that haa 
 long been settled to be otherwise. But the fact that its 
 policy has been thus questioned where money alone is to 
 be paid, is a strong ground to show that the rule dispens- 
 ing with any demand upon the obligor for performance, 
 before a suit against him for non-performance, should not 
 be applied but with great caution to any other contracts 
 than those for the payment of money. We are now well 
 satisfied that it should not be extended to cov- 
 L*277] enants, like the *one under consideration, for the 
 conveyance of land. An eminent English writer 
 upon this subject says: "A vendor can not bring an ac- 
 tion for the purchase-money, without having executed the 
 conveyance, or offered to do so, unless the purchaser has 
 discharged him from so doing. And, on the other hand, 
 a jMirchaser can not maintain an action for breach of con- 
 tract, without having tendered a conveyance and the pur- 
 
 (324)
 
 NOVEMBER TERM, 1829. 277 
 
 Sheets v. Andrews, 
 
 chase-mouey." Sugdeii on V^eiidors, pages 162, 163. We 
 are not now called on for an opinion as to whether the 
 purchaser should pursue the English practice by not oul}' 
 demanding the conveyance, but also by tendering it for 
 execution. It is sufficient for the present purpose to say 
 that this suit could not be maintained, unless, previously 
 to its commencement, the deed had been demanded. 
 
 Upon this view of the subject, the plea to which we 
 have particularly referred, denying that any demand of 
 the deed had been made, is a bar- to the action. The 
 contrary opinion heretofore expressed in Deming v. Bul- 
 litt, Cunningham v. Fiinn, and Aiidrews v. Sheets, is, of 
 course, overruled (1). 
 
 With respect to the question which has been raised in 
 this cause, relative to the measure of damages, the opin- 
 ion of the Circuit Court is considered to be correct. The 
 same opinion was expressed by this Court at the Ma}' 
 term, 1828, in the case oi Blackwell v. The Board of Jus- 
 tices of Lawrence County (2). It appears to us that where 
 no fraud is alleged, the purchase-money, with interest, 
 should be the measure of damages, whether the breach 
 complained of be of the covenant of seisin or of warrantv 
 contained in a conveyance, or whether it be, as in the 
 present case, of a covenant to convey. 
 
 The judgment, however, must be reversed upon the 
 lirst objection taken by the plaintiff in error; and which 
 we have already examined. The plea in denial of the 
 demand being good, the demurrer to it was erroneously 
 sustained. 
 
 Per Curiam. — The judgment is reversed, and the pro- 
 ceedings subsequent to the joinder in demurrer, are set 
 aside, with costs. Cause remanded, with directions to 
 permit the plaintiff" below to withdraw his demurrer and 
 reply to the plea. 
 
 Stevens, for the appellant, 
 Jloirk'Und Sullivan, for the appellee. 
 
 (325)
 
 278 SUPREME COURT OF INDIANA. 
 
 Weathers r. The State. 
 
 [*278] (1) *Au action of covenant was brought by a vendee against a 
 vendor of real estate. The covenant on which the suit was found- 
 ed, was, that the vendor, in consideration of a certain sum paid to him, 
 would convey to the vendee, at a certain time, a certain tract of land. Plea, 
 that the defendant had not been requested to convey, &c. Demurrer to the 
 plea. Per Curiam. — On the merits, it is impossible to distinguish this case 
 from Fidler v. Hubbard, 6 Cowen, 13, and Hackett v. Huson, 3 Wendell, 250. 
 In the latter case, particularly, the consideration had been paid, as in this 
 case, and the conveyance was to be executed by a jjarticular day; but the 
 same rule was held applicable, which had been previously applied, when 
 the payment of the consideration and the giving of the deed were to be sim- 
 ultaneous acts. It may be considered the rule of this Court, that when a 
 party covenants to convey, he is not in default until the party who is to re- 
 ceive the conveyance, being entitled thereto, has demanded it, and having 
 waited a reasonable time to have it drawn and executed, has made a second 
 demand. In England, the party entitled to the deed is bound to have it 
 drawn and presented for execution. We have not gone .so far. The party 
 who is to give a deed, certainly should have it drawn at his own expense; 
 but upon such a covenant as that declared on in this ca.se, the covenantor 
 is not bound to prepare the conveyance until it is demanded, when it is his 
 duty to execute and perfect the conveyance with all reasonable dispatch, 
 and hold it ready for delivery when called for. The purchaser, no doubt, 
 may pi'epare tlie deed and tender it for execution, and then but one demand 
 is necessary. Connelly v. Pierce, 7 Wend. 129. 
 
 A purchaser is not bound to prepare and tender a deed to the vendor, 
 unless such an obligation can be inferred from the terms of the contract. 
 Fairfax v. Lewis, 2 Rand. 20. 
 
 (2) Ante, p. 143. On the ancient writ of tvarrantia chartie, the feoffee, in 
 case of eviction, only recovered other lands as valuable as those, from which 
 he was evicted, were at the date of the warranty. The personal covenants 
 in a conveyance — of seisin, of right to convey, against incumbrances, of 
 quiet enjoyment, and of warranty — were introduced in the place of the 
 ancient warranty. And it has been generally considered, that the measure 
 of damages for a breach of any of the substituted covenants, should be 
 eimilar to that which existed for a breach of the original one. Chancellor 
 Kent examines this subject and refers to the principal authorities. He 
 concludes as follows : "The ultimate extent of the vendor's responsibility, 
 under all or any of the usual covenants in his deed, is the purchase-money 
 with interest, and this I presume to be the prevalent rule throughout the 
 United States." 4 Kent's Comm. 2d Ed. 476. 
 
 Weathers v. The State. 
 
 ■pERJUKY — Materia.!. ]\Iatter — Indictment. — An indictment for perjury 
 must .show conclusively, that the testimony given by the defendant, and 
 charged to be false, was material to the issue on the trial of which he was 
 .sworn. 
 
 ERROR to the Ripley Circuit Court. 
 
 (326)
 
 NOVEMBER TERM, 1829. 2Tb-2T<J 
 
 Weathers v. The State. 
 
 HoLMAN, J. — William Weathers was indicted for per- 
 jury in the Ripley Circuit Court. The indict- 
 [*279] ment states that on the *27th of October, in the 
 year 1828, on the trial of a certain issue, in the 
 Ripley Circuit Court, wherein Gardner Woodburj- was 
 plaintiiF, and Daniel Ross, Samuel Hodges and Reuben 
 Hodges were defendants, duly joined on the plea of pay- 
 ment to a certain note in writing under seal, regularly 
 executed by the said defendants, William Weathers ap- 
 peared as a witness for the defendants, and took his cor- 
 poral oath, &c., to speak the truth, &c., touching the mat- 
 ters in question in the issue joined as aforesaid; that, on 
 the trial of the said issue, certain questions became and 
 were material, that is to say, whether he, the said William 
 Weathers, had paid one Robert Knowlton, the assignor 
 of the said plaintiff, before the assignment of the said 
 note, the sum of 73 dollars, for the defendants aforesaid; 
 and that the said William Weathers, on the said 27th of 
 October, in the year 1828, in the said Ripley Circuit 
 Court, on his oath aforesaid, on the issue aforesaid, know- 
 ingly, falsely, &c., amongst other things, did depose and 
 swear, that he, the said William Weathers, had, before 
 that time, paid to the said Robert Knowlton, the assignor 
 of the said note, the sum of 73 dollars, on the said note, 
 for the said defendants; whereas in truth and in fact, the 
 said William Weathers, at the time when he so swore as 
 aforesaid, had not before the time when he so swore as 
 aforesaid, nor before the assignment of the said note to 
 the said plaintiff in the action aforesaid, nor at any other 
 time, paid the said Robert Knowlton the said sum of 73 
 dollars, nor any other sum of money on the said note. 
 On this indictment AYeathers was found guilty by a jury, 
 who assessed his fine at 50 dollars, and found that he 
 should be imprisoned in the prison of the state for one 
 year. Motion in arrest of judgment overruled, and judg- 
 ment given on the verdict. To reverse this judgment 
 Weathers has prosecuted his writ of error. 
 
 (327)
 
 279-280 SUPREME COURT OF INDIANA. 
 
 Weatheis v. The State. 
 
 This judgment can not be sustained: it should have 
 been arrested by the Circuit Court. The indictment is 
 insufficient, inasmuch as it does not show conclusively 
 that the testimony given by Weathers was material to the 
 issue between Gardner Woodbury, plaintiff, and Daniel 
 Ross, Samuel Hodges, and Reuben Hodges, defendants. 
 The facts sworn to must be material, in order to consti- 
 tute the crime of perjury. A man may knowingly and 
 corruptly swear falsely, and 3^et not be guilty of perjury. 
 
 And the indictment, in order to allege the crime 
 [*280] of ^perjury, must unequivocally aver that the 
 
 facts sworn to were material. Nothing is to be 
 taken by intendment. Here the indictment says, that it 
 was material whether Weathers had paid 73 dollars to 
 Knowlton, for the defendants, before the assignment of 
 the note. ' Now, if the indictment had stated that Weath- 
 ers swore that he had paid 73 dollars to Knowlton before 
 the assignment of the note, the testimony would have 
 been material within the terms of the indictment. But 
 such was not the testimony of Weathers. He did not 
 swear, as we understand the expressions in the indict^ 
 ment, that he paid the money to Knowlton before the as- 
 signment of the note, but that he had paitl the money 
 before that time — the time when he gave his evidence. 
 
 The indictment does not say that the question whether 
 Weathers paid the money to Knowlton after the assign- 
 ment of the note was material; nor does it charge that he 
 swore that he paid it before the assignment; therefore 
 the deduction is clear, that the swearing may have been 
 to a fact that the indictment does not allege to have been 
 material. If the allegation of materiality in the indict- 
 ment is not sufficiently broad to cover the facts sworn to 
 by the Jofcndant, it is just the same as if the indictment 
 contained no allegation of the materiality of the facts 
 sworn to at all. And surely no lawyer would contend 
 that an indictment would be good without an allegarion 
 that the facts, to which the defendant deposed, were ma- 
 
 (328)
 
 NOVEMBER TERM, 1829. 280-281 
 
 Weathers v. The State. 
 
 terial. It therefore appears to us that, if we take the 
 whole of the indictment as true, it does not iix upon the 
 defendant the charge of perjury; for if the question of a 
 payment to Knowlton, at any time subsequent to the as- 
 signment of the note, was not material, the swearing of 
 Weathers, though false, may not have amounted to per- 
 jury. In fixing this conclusion it must be remembered 
 that the indictment does not pretend that the time when 
 the note was assigned, and the time when Weathers gave 
 this evidence was the same; and in the very nature of 
 the transactions, some time must have elapsed after the 
 assignment of the note before the defendant gave this evi- 
 dence relative to this payment ; and a question of payment, 
 during this interval of time, is not said by the indict- 
 ment to have been material ; and for aught that ap- 
 [*281] pears in the indictment, it may have been in *this 
 interval of time, when the defendant swears that 
 he paid the money to Knowlton. 
 
 The attorney for the state supposes that the averment 
 in the indictment that Weathers had not, before the time 
 when he so swore, nor before the assignment of the said 
 note, paid the said 73 dollars, removes this objection. But 
 an averment that Weathers had not paid the money be- 
 fore the assignment of the note, does not reach or limit 
 the general terms of the swearing as to the time of pa}-- 
 ment. ]S"or does the general averment that Weathers had 
 not paid the money at any time before he gave this evi- 
 dence, show that a question as to a payment at any time 
 was material. It may be considered as showing that 
 Weathers has certainly sworn falsely, but it does not reach 
 the materiality of the facts sworn to, so as to show that a 
 perjury had been committed. 
 
 There are other errors assigned that would demand our 
 attention, if the one already examined did not show, con- 
 clusively, that the indietnient is materially defective, and 
 that the judgment must be wholly reversed. 
 
 (329)
 
 281-282 SUPREME COURT OF INDIANA. 
 
 Pegg I'. Davis. 
 
 Per Curiam. — The judgment is reversed. To be certi- 
 fied &c. 
 
 Stevens, for the plaintitf. 
 Wick, for the state. 
 
 Pegg v. Davis. 
 
 Pleadings — Equity — Exceptions and Answers. — If exeeptions be taken 
 to some parts of an answer in chancery, and the Court consider the ex- 
 ceptions valid, the defendant may be ordered to answer over so far as the 
 exceptions extend, but he can not be required to answer over generally. 
 
 Same. — If the answer to any particular charge in a bill be not sufficiently 
 explicit, the complainant should file exceptions to that part of the answer ; 
 but if instead of doing that, be acquiesce in the answer, the charge must be 
 proved or it will be disallowed. 
 
 Equity Practice — Formation of Issues. — If any particular claim in a 
 bill be not answered, the complainant should insist on an answer, and if 
 such answer be refused, he may take a decree pro tantohy confession ; and 
 then, if the charge is sufficiently explicit, it may be recovered without 
 further proof. But should the complainant, instead of pursuing that 
 course, bring the case to a hearing on the merits, he can only entitle 
 himself to the claim by proving it. 
 
 Same — Deed Pro Confesso. — If the charge in a bill be not stated with 
 sufficient certainty, the complainant can not, even after a decree pro 
 confesso, have a final decree, unless he establish his demand by satisfactory 
 evidence (a). 
 
 [*282] *ERROR to the Franklin Circuit Court. 
 
 Blackford, J. — In October, 1822, Pegg tiled a bill in 
 chancery in the Franklin Circuit Court against Davis; 
 and, in October, 1823, he filed an amended bill. By these 
 bills it appears that the complainant and defendant had 
 been partners in business at Brook ville, as merchants and 
 manufacturers. It is also shown that they had made a 
 final settlement of their partnership concerns, and had 
 dissolved their partnership. The object of the suit was, 
 among other things, that the settlement of the partner- 
 
 («) 4 Ind. 149. 
 
 (330)
 
 N()\^KM1'>EK TERM, 1829. 282-283 
 
 Pegff I'. Davis. 
 
 ship accounts should be opened, in consequence of fraud; 
 and that Davis shoukl be compelled to account for part- 
 nership funds, fraudulently applied by him to his own use. 
 In January, 1824, Davis tiled his answer; and, in Febru- 
 ary following, he filed a cross-bill. In May, 1824, Pegg, 
 the complainant in the original bill, filed his answer to 
 the cross-bill. In July and August, 1824, several deposi- 
 tions were taken in the cause. In September following, 
 Davis filed an amended cross-bill ; which was answered 
 by Pegg. The latter also filed a supplemental bill ; which, 
 in March, 1825, was answered by Davis. At the March 
 term, 1825, Davis filed exceptions to Pegg's answers to 
 the cross-bill and amended cross-bill. And the Court, 
 during the same term, made the following order : " On 
 motion, the defendant, John Pegg, is ruled to answer over 
 to complainant's cross-bill in 90 days, or decree to be en- 
 tered thereon at the next term of this Court." The next 
 proceeding in this cause was the following order of refer- 
 ence, made at the September term, 1825 : "On motion, 
 this cause is referred io the master in chancery for a set- 
 tlement of accounts between the said parties ; who is re- 
 ([uired to report to the next term of this Court." At tlie 
 September term, 1826, the master reported that there was 
 a balance due to Davis, the defendant in the original suit, 
 of 2,958 dollars. During the same term, no objection being 
 made to the report, and the bills, answers, depositions, and 
 exhibits, in the cause, having been examined bythe Court, 
 there was a final decree made that Davis recover the said 
 sum of 2,958 dollars, found and reported by the master 
 in manner aforesaid, together with costs. 
 
 Pegg, the complainant below in the original suit, ap- 
 peals to this Court. 
 
 The general order, made by the Circuit Court at the 
 [*283] March *term, 1825, that Pegg should answer over 
 
 to the cross-bill of Davis, was incorrect. There 
 are material parts of Pegg's answer to the cross-l)ill, to 
 which Davis took no exception. Supposino-, therefore, 
 
 (331)
 
 283 SUPREME COUET OF INDIANA. 
 
 Pegg r. Davis. 
 
 that all the exceptions are valid, it is clear that Pegg 
 could not be required to answer over to the whole bill, but 
 oidy so far as the exceptions to his answer extended. It 
 is not necessary, however, to dwell upon this part of the 
 case. This irregular order produced no injury to Pegg, 
 the plaintift' in error, of which he can complain. No ettbrt 
 was made to enforce it. It remained a dead letter, not 
 noticed either by the parties or by the Court. Davis may 
 be considered as having abandoned the order, together 
 with the exceptions which it was intended to sustain. 
 We shall consider the case, therefore, as if there had been 
 no order upon Pegg to answer over, nor any exceptions 
 to his answer. 
 
 The master's report contains a long statement of the ac- 
 counts between the parties. The two principal charges 
 allowed by the master against Pegg are, one of 2,000 
 dollars, the other of 800 dollars. The following is a copy 
 of the entry of these charges in the master's report: "To 
 this amount of cash notes on hand, at the time of the dis- 
 solution of the partnership, which he, Pegg, is charged 
 with having secreted ; and his answer appears to be vague 
 and uncertain — 2,000 dollars. To this amount in cash on 
 hand, at the time of the dissolution of the partnership ; to 
 which the answer is vague and uncertain — 800 dollars." 
 The record contains no proof of either of those charges. 
 They were allowed by the master, as he himself particu- 
 larly states, merely because they are contained in the bill, 
 and the answer to them is vague and uncertain. 
 
 The statement in the amended cross-bill — and it appears 
 nowhere else — as to the charge of 2,000 dollars, is as fol- 
 lows: "At the time of the dissolution of the said part- 
 nership, as your orator is informed and believes, the said 
 John Pegg had cash notes to a large amount, say, 2,000 
 dollars, on divers individuals, payable to the said firm of 
 Pegg and Davis; and which had been given by said per- 
 pojis on contract to the use of said firm: whicli said notes 
 the said Pegg at that time secreted and kept back, and has 
 
 (332)
 
 NOVEMBER TERM, 1829. 283-284 
 
 Peofsr c. Davis. 
 
 never to this day accouuted to your orator for the same. 
 
 Some of which said notes, the said Pegg after- 
 ['''284] wards assigned to third persons on his own *in- 
 
 dividual contracts." The answer of Pegg to this 
 charge is as follows : " This defendant says, that if, at the 
 dissolution aforesaid, there were cash notes on hand 
 beh)nging to the firm, they were honestly applied, so far 
 as this defendant was concerned, to the payment of part- 
 nership debts; not a cent of which was ever applied to his 
 own individual use without accounting therefor." In this 
 answer of Pegg, there is certainly no admission of his ever 
 having had any part of the 2,000 dollars in cash notes, 
 with which he is charged, and he positively denies the 
 appropriation of any of them to his own use as stated in 
 the bill. There is nothing, therefore, in the answer to 
 warrant the allowance of this charge of 2,000 dollars. If 
 the answer is not sufficiently explicit, Davis should have 
 insisted upon his exceptions to it. That, however, as we 
 have already shown, he failed to do. By acquiescing in 
 the answer, he rested the fate of this charge upon the proof 
 he might be able to adduce. But he produced no evidence 
 to support it, and consequently, had no right to the allow- 
 ance. 
 
 The other item of 800 dollars is charged in the amend- 
 ed cross-bill as follows: "At the time the said partner- 
 ship was dissolved as aforesaid, the said plaintiff had on 
 hand a large sum of money, as your orator is informed 
 and believes, belonging to said firm, which he fails to ac- 
 count for, or pay over to your orator." To this claim of 
 800 dollars, the answer contains no particular notice. 
 Whether, on account of the generality of the charge — no 
 particular sum being mentioned — Pegg was authorized to 
 pass it over in silence, is not now the question. It was 
 the business of Davis, to insist upon an answer to this part 
 of his bill, if he had a right to it; and, if the answer 
 were refused, to take a decree joro ta.nfo by confession. 
 Then, if the charge is sufficiently explicit, he might have 
 
 (333)
 
 284-285 SUPREME COURT OF INDIAN^A. 
 
 Pegg ( . Davis. 
 
 recovered it without the production of proof. That course, 
 however, was not pursued. The case was brought to a 
 liearing on the merits ; and Davis could entitle himself to 
 tins charge of 800 dollars in no other way than by prov- 
 ing it. That he failed to do; and the allowance, there- 
 fore, should not have been made. 
 
 There is another view which may be taken of this sul)- 
 ject. Admitting the order of the Court, requiring Pegg 
 to answer over generally, to be correct; and supposing 
 that, for the want of such answer, there had been 
 [*285] a decree against him, pro confesso ; *even under 
 those circumstances, Davis could not have recov- 
 ered, without proof, either the charge of 2,000 dollars, or 
 that of 800 dollars. The reason is, there is too much un- 
 certainty in the statement of these charges in the bill. 
 The first is, "of cash notes to a large amount, say 2,000 
 dollars." Here, by the insertion of the word say, the 
 amount is rendered altogether uncertain. The second is, 
 " of a large sum of money ; " without the slightest refer- 
 ence to any definite amount. In such cases of uncertainty 
 as to the allegations in a bill, the complainant, even after 
 a decree pro confesso, can have no right to a final decree 
 unless he establish his demands by satisfactory evidence. 
 This doctrine was lately examined by the Court of chan- 
 cery in New York, and may be considered as settled. 
 Williams v. Corwin, 1 Hopkins' Rep. 471 (1). 
 
 From these considerations we are perfectly satisfied that 
 the decree in this case is incorrect, as regards the two 
 principal items of the account allowed against Pegg. It 
 was a great mistake to suppose that Davis could be en- 
 titled to them, independently of any evidence, merely be- 
 cause, in the language of the master, the answer respect- 
 ing them was vague and uncertain. 
 
 It is not necessary that we should examine any further 
 into the merits of this decree. It is evidently erroneous, 
 and must be reversed. It has also been shown that the 
 orih^' rorpiiring a new ansAver generallv to the cross-bill 
 
 (334)
 
 NOVEMBER TERM, 1829. 285-28d 
 
 Gordon v. Spencer. 
 
 was incorrectly made: that order, therefore, with the sub- 
 sequent proceedings, must be likewise set aside. The 
 cause must be remanded to the Circuit Court for further 
 proceedings, with directions to permit the parties to amend 
 their bills'^ answers, &c., and to take further evidence, if 
 they think proper. 
 
 Per Curiam.— The decree is reversed, &c. Cause re- 
 manded, &c. 
 
 Lcme and Fox, for the plaintiff. 
 
 Morris, for the defendant. 
 
 (1) " When the allegations of a bill are distinct and positive, and the bill 
 is confessed, such allegations are taken as true, without proot ^^ here the 
 allegations of a bill are indefinite, or the demand ot the complainant is in 
 its nature uncertain, the certainty requisite to a proper decree must be 
 afforded by proofs." Per Sanfobd, Chancellor, in Wdhams v. Corwm, cited in 
 the text. Vide Piatt el d. v. Judson, May term, 1833, post. 
 
 r*286] ^Gordon \j. Spencer. 
 
 Continuance— Practice— Absent Witness.— If the continuance of a 
 cause be applied for, on the ground that a witness who had been sub- 
 poenaed does not attend, the return of the sheriflf must be produced. 
 
 Same.— An affidavit for a continuance, on account of the absence of wit- 
 ness, must clearly show their materiality. 
 
 Slander— Evidence.— A plaintiff in slander, having first proved that the 
 defendant had spoken to third persons the words laid in the declaration, 
 may prove, in support of the declaration, that the defendant had spoken 
 the same words in answer to the plaintiff's interrogatories. 
 
 APPEAL from the Franklin Circuit Court. 
 
 HoLMAN, J.— Alma Spencer obtained a verdict and judg- 
 ment against James Gordon in an action of slander. Dur- 
 ing the progress of the cause the defendant, now the ap- 
 petlant, took two bills of exceptions, and has appealed to 
 this Court for a reversal of the judgment. 
 
 The first bill of exceptions states that the defendant 
 applied to the Circuit Court for a continuance of the 
 cause, on account of the absence of four witnesses; stat- 
 
 (335)
 
 286-287 SUPREME COUKT OF INDIANA. 
 
 Gordon v. Spencer. 
 
 ing in an affidavit that one of them, who resided in this 
 state, had been subpoenaed in his behalf, as he was in- 
 formed by the sheriff; that the other three lived in the 
 state of Ohio, Butler county ; that he expected to be able 
 to procure their testimony by the next term of that Court, 
 either by deposition or otherwise, and support the mat- 
 ters alleged in his plea of defence, and prove the bad char- 
 acter of the said Alma Spencer, if this cause should be 
 continued; and that he knew of no other persons by 
 whom he could prove the same facts. To counteract the 
 effect of this affidavit, the plaintiff introduced the affidavit 
 of a third person, which was received and read by the 
 Circuit Court. The Circuit Court, on hearing these affi- 
 davits, refused to continue the cause. We deem it unne- 
 cessary to notice the counter affidavit introduced by the 
 plaintiff", inasmuch as we are of opinion that the defend- 
 ant's affidavit does not show, conclusively, that the Cir- 
 cuit Court transcended the bounds of a legal discretion 
 in refusing a continuance of the cause. Without min- 
 utely criticising this affidavit, we see two points of uncer- 
 tainty in it. The first is as to the summoning of the resi- 
 dent witness. The sheriff's information was not 
 [*287] the best evidence in this matter to which the *de- 
 fendant might have referred. The sheriff's offi- 
 cial return to the subpoena was preferable. The second 
 is, that the defendant does not state conclusively that he 
 expects to prove anything by any of these witnesses; but 
 that, if the cause should be continued, he expected to 
 procure their testimony either by deposition or otherwise, 
 and support the matters alleged in his plea, and prove the 
 bad character of the plaintiff*. Passing the vagueness of 
 what he expected to prove, he does not say, positively, 
 that he expected to prove this by these witnesses or any 
 of them; nor will the statement that he knew of no other 
 persons by whom he could prove the same facts, entirely 
 remove this uncertainty. When an application is made 
 to this Court to reverse a judgment, on account of an 
 
 (336)
 
 XO\'EAli;Ei{ TEIIM, 1829. 287-288 
 
 Gordon r. Spencer. 
 
 abuse of legal discretion by the Circuit Court, a case must 
 be made out that shows, unequivocally, that the Circuit 
 Court has abused its discretionary powers. So that we 
 can not sa}^ that the Circuit Court erred in refusing a con- 
 tinuance (1). 
 
 The second bill of exceptions is as follows : " The plain- 
 tift" offered in evidence to the jury words spoken bj' the 
 defendant on interrogatories (of the plaintiff,) to support 
 the words laid in the declaration, (the words as set out in 
 the declaration being proved by other witnesses;) to the 
 admission of which, as evidence to the jury to support the 
 words laid in the declaration, the defendant by his counsel 
 objects, and moves the Court to charge the jury, that 
 words spoken by the defendant of the plaintiff, on inter- 
 rogatories, could not be received as evidence to support 
 the words laid in the declaration; which said objection 
 and motion of the defendant were, by the Court, overruled, 
 and the evidence aforesaid was permitted to go to the jury, 
 in support of the words charged in the declaration ; to 
 which decision and judgment of the court, the defend- 
 ant by his counsel excepts." The appellant by his coun- 
 sel contends with much earnestness, that the Circuit Court 
 erred in the admission of his testimony. He relies, in 
 sup[)()it of this position, principally, on the case of Kinr/ 
 V. Warwg, 5 Esp. R. 13, and Smith v. Wood, 3 Campb. 
 323. In King v. Waring, Lord Alvanley decided, that 
 "though a letter giving a false character of a servant 
 might be the ground of an action, yet if written as an an- 
 swer to a letter sent, not with a view of obtaining a char- 
 acter, but with an intention to procure an answer, 
 [*288] upon which to ground *an action for a lil)el, 
 such evidence ought not to be admitted. In Smith 
 V. Wood, which was an action for libel upon the plaintiff* 
 in the shape of a caricature print, entitled, "The inside of 
 a parish work-house with all abuses reformed," a witness 
 stated that, having heard that defendant had a copy of 
 this print, he went to his house and requested liberty to 
 Vol II.— 22 (337)
 
 288 SUPREME COURT OF INDIANA. 
 
 Gordon v. Spencer. 
 
 see it ; and that the defendant thereupon produced it, and 
 pointed out the figure of the plaintifl" and the other persons 
 it ridiculed. Lord Ellenborough ruled, that this was not 
 suilicient evidence of publication to support the action. 
 Starkie, in his treatise oh evidence, annexes a quaere to 
 this case; because it does not appear that the witness had 
 been sent by the plaintiff. 2 Stark, Ev. 877. These cases, 
 together with some insinuations in the case of Rogers v. 
 Clifton, 3 Bos. & Pull, 587, though less strong than the 
 foregoing, may be considered as supporting the doctrine 
 laid down in Starkie on Slander, 169, and 2 Stark. Ev. 
 876, viz : that where the plaintiff, knowing the defendant's 
 sentiments, procures the publication for the purposes of 
 the action, he can not afterwards be heard to complain of 
 that as an injury, which he has voluntarily occasioned. 
 
 Taking this to be the law upon this subject, still we are 
 of opinion that the bill of exceptions does not show, that 
 the Circuit Court erred in the admission of this testimony, 
 or in the refusal of these instructions. If the plaintiff, 
 hearing that the defendant had uttered the slander to 
 others, should inquire of the defendant as to the truth of 
 the report, and the defendant should repeat the slander, 
 the fact that he spoke the slanderous words in answer to 
 the plaintiff's interrogatories in the last instance, would 
 not destroy the plaintiff's right of action. And after the 
 plaintiff had proved the first speaking of the words, we 
 know of no rule that would prevent him from proving, 
 that the same words were afterwards repeated in answer 
 to his interrogatories. In tliis case, the words laid in the 
 declaration were first proved, (says the bill of exceptions,) 
 by other witnesses, before the evidence relative to the 
 words spoken in answer to interrogatories was introduced ; 
 and there is not enough in the bill of exceptions to show 
 that the evidence objected to was inadmissible. To make 
 this a case, in which we could determine as to the ad- 
 missibility of the words spoken in answer to inter- 
 rogatories, it should appear what the interrogatories 
 
 (33 S)
 
 NOVEMBER TERM, 1829. 28^ 
 
 The State i'. Stucky, in Error. 
 
 [*289] *were, what induced them, what the words thus 
 spoken were, and how tar they varied the case 
 from what it would otherwise have been. The refusal of 
 the Circuit Court to give the instructions required, 
 amounts to no more than the admission of the testimony, 
 and its correctness can only be tested by the precise state of 
 the case. We have seen neither principle nor precedent, 
 that would authorize us to say, in general terms, that 
 words spoken by a defendant in answer to interrogatories 
 of a plaintiiF, can in no case be given in evidence to sup- 
 port the words laid in the declaration, where the words 
 laid in the declaration have been previously proved by 
 other witnesses. 
 
 Per Curiam. — The judgment is affirmed with 1 per cent, 
 damages and costs. 
 
 Wick, 3Iorris, Starr, and Caswell, for the appellant. 
 
 M' Kinney and Smith, for the appellee. 
 
 (1) The principal facts, expected to be proved by the absent witness^ 
 must be stated in the affidavit, in order that the Court may judge of the ma- 
 teriality of the witness. Stat. 1833, p. 115. 
 
 The State v. Stucky, in Error. 
 A^N" indictment for retailing spirituous liquors to divers 
 persons without license, is bad. It should either contain 
 the names of the persons to whom the sale was made, or 
 state their names to be unknown. 1 Chitt. C. L. 211. 
 
 Shelby, Administratrix, v. The Governor, for the use of 
 
 Newman. 
 
 Admissions of Principal — Liability of Surety. — A sheriff's acknowl- 
 edgment that he had collected money on an order of sale, can not be 
 proved to sustain an action for the money on the plaintiff's surety imless 
 the acknowledgment was made whilst the sheriff was acting officially in 
 relation to the receipt of the money (a). 
 
 (a) 15 Ind. 64. ~~ 
 
 (339)
 
 289-290 SUPREME COUHT OF INDIANA. 
 
 Shelby, Aduiinistratrix, i. The Governor, for the use of Newman. 
 
 ERROR to the Clark Circuit Court. — For the cause of 
 action aud the defence in this case, see The Governor v. 
 
 Shelby, ante, p. 26, 
 [*290] HoLMAN, J. — On the trial, the pUiintiiF intro- 
 duced a witness to prove that Weathers told him 
 that he had collected the money in controversy. To the 
 admission of which testimony the defendant objected, 
 but the Court were divided on the question and the tes- 
 timony went to the jury; to which the defendant ex- 
 cepted. The plaintiiFhad a verdict and judgment, wh'ch 
 judgment the defendant seeks to reverse by writ of error. 
 Agreeably to the decision in the case of Hotchkiss v. Lyon 
 and Others, May term, 1829 (1), and the cases there cited, 
 the admissions or declarations of a principal are not evi- 
 dence against a surety, unless such admissions or declara- 
 tions form a part of the transaction in which the prin- 
 cipal, as such, is engaged. If Weathers, while officially 
 acting in relation to the receipt of this money, stated that 
 he had received it, such statement would form a part of 
 the res gestre, and would be evidence to prove the act of 
 receiving; and would therefore be admissible against his 
 sureties. But declarations made by him at any subse- 
 quent period, would have no connection with the act, and 
 could not be introduced as evidence of the act, so as to 
 bind his sureties; for it is his acts and not his admissions 
 or declarations, for which his sureties are bound. As the 
 statement of Weathers, that he had collected this money, 
 is not connected by the testimony, with any act of his 
 relative to this order of sale, or any money collected by 
 him on this order, it was inadmissible as evidence against 
 the defendant in this case. 
 
 Per Curiam. — The judgment is reversed, and the ver- 
 dict set aside, with costs. Cause remanded, &c. 
 
 Howk and Dewey, for the plaintiff. 
 
 Thompson, for the defendant. 
 
 (1 ) Ante, p. 222. 
 
 (340)
 
 NOVEMBER TERM, 1829. 290-291 
 
 O'Brien and Others, Executors, v. Daniel and Others. 
 
 O'Brien and Others, Executors, v. Daniel and Others. 
 
 Attachment — Affidavit — Pleading. — An Affidavit in attachment can 
 not be objected to for not describing the nature of the debt, if the same be 
 described in a declaration tiled in the cause. 
 
 Same — Venue. — The affidavit, in the case of a domestic attachment, must 
 state the county in which the debtor had recently resided (a). 
 
 [*291] *ERROR to the Posey Circuit Court. 
 
 HoLMAN, J. — Domestic attachment on the following- 
 affidavit : — " State of Indiana, Posey county, ss : I, Rich- 
 ard Daniel, of the county aforesaid, do solemnly swear 
 that John J. O'Brien, James J. O'Brien and Michael 
 O'Byrns, executors of the last will and testament of 
 Thomas Jones, deceased, are justly indebted to me, the 
 said Richard Daniel, in the sum of 150 dollars; and that 
 the said John J. O'Brien, James J. O'Brien and Michael 
 O'Byrns, so concealed themselves that the ordinary pro- 
 cess of law can not be. served upon them. — R. Daniel." 
 Endorsed, sworn to, &c. A number of creditors filed their 
 claims under this attachment, and proceeding were had 
 to final judgment. Among a variety of errors assigned 
 for reversing these proceedings, two exceptions are taken 
 to the affidavit. One is, that the affidavit does not specify 
 the nature of the debt on which the attachment is foun- 
 ded: but as a declaration was afterwards filed by Daniel, 
 specifying the nature, &c. of his debt, this defect is re- 
 moved. The other is, that the affidavit does not state 
 that the debtors were late of the said county, as required 
 by the act of assembly, or of any other county in this 
 state. This exception is well taken. The act of assembly 
 requires the affidavit to state the late residence of the 
 debtors. R. C. 1824, p. 61 (1). From anything in this 
 affidavit, the debtors may have been non-residents, and 
 not subject to a domestic attachment. The ex parte 
 
 (a) 9 Ind. 367. 
 
 (341)
 
 291-292 SUPREME COURT OF IXDIAXA. 
 
 Swan V. Rarj. 
 
 nature of these proceedings requires a strict compliance 
 with every statutory requisition. 
 
 Per Curiam. — The judgment is reversed with costs. To 
 be certified, &c. 
 
 Howk, for the plaintiffs. 
 Hall, for the defendants. 
 
 (1) Accord. R. C. 1831, p. 75. 
 
 Swan v. Rary. 
 
 Practice — Issues and Trial. — The issues must be made up before the 
 
 jury are sworn, excepting only that a similitti' may be dispensed with. 
 
 Same — Filing of Pleadings. — An affidavit by the plaintiff's 
 
 [*292] attorne}', that he had left the replication on the clerk's *table with 
 
 the papers in the cause, and that it had afterwards come into the 
 
 deponent's possession by mistake, does not show, with sufficient certainty, 
 
 that the replication had been properly filed. 
 
 APPEAL from the Parke Circuit Court. 
 
 Blackford, J. — This was an action of slander by Rary 
 against Swan. The defendant pleaded not guilty and a 
 justification. Verdict for the plaintifiT below. A motion 
 was made by the defendant below in arrest of judgment, 
 because there was no replication to his special plea. It 
 appeared that after the verdict had been received the re- 
 plication to the special plea was in possession of Rary's 
 attorney, and had not been filed, unless the following 
 facts shown by that attorney's afiidavit, amounted to a 
 filing, viz., that he had left the replication on the clerk's 
 table with the papers in the cause, and that it had after- 
 wards come into the attorney's possession b}- mistake. 
 The Circuit Court overruled the motion in arrest of judg- 
 ment, and rendered judgment on the verdict. 
 
 It is not disputed but that it was necessary to file the 
 replication previously to the trial. The issues must be 
 made up before the jury are sworn; excepting only, as 
 
 (342)
 
 NOVEMBER TERM, 1829. 292-293 
 
 Glass V. Doe, on the Demise of Murphy, on Appeal. 
 
 we have heretofore decided, that the similiter may be dis- 
 pensed ^yith. Jared v. Goodtitle, Nov. term, 1818 (1). 
 The only question in this case is, was the replication prop- 
 erly tiled? Our opinion is that the record does not show 
 that it was. It is not stated by the affidavit that the re- 
 plication was ever in the hands of the clerk. After the 
 trial it was found to be, by mistake, in the possession of 
 the plaintiff's attorney. The circumstance of its having 
 been once left on the clerk's table, by the attorney, is not, 
 under the circumstances of the case, sufficient evidence 
 that it had been properly tiled. The motion in arrest of 
 judgment should have been sustained. 
 
 Per Curiam. — The judgment is reversed. Cause re- 
 manded, &c. 
 
 Dewey and Kinney, for the appellant. 
 
 Cone, for the appellee. 
 
 (1) Vol. 1, of these Eep. 29. It is held, in a late case, that even the 
 omission to add the similiter is an irregularity for which a verdict will be 
 set aside. Griffith v. Ci-ockford, 3 Brod. & Bing. 1. But there are several 
 cases to the contrary. Vide note to Jared v. Ooodtitle, cited in the text. 
 
 ;[*293] Glass v. Doe, on the Demise of Murphy, on 
 
 Appeal. 
 
 Infants— Right to be Made Parties. 
 
 AN infant, having a title to land for which an action 
 of ejectment is brought, has a right to be admitted a de- 
 fendant on the usual terms; and the Court should appoint 
 a guardian for him, in order that he may be enabled to 
 defend the suit. 
 
 Wheeler and Another i\ Emerson, on Appeal. 
 
 ONE of two defendants in chancery can not be exam- 
 ined as a witness by the complainant, without a special 
 
 order of the Court. 
 
 (343)
 
 293 SUPREME COURT OF INDIANA. 
 
 Long, V. Long, on Appeal. 
 
 Long v. Long, on Appeal. 
 
 Evidence — Variance. : 
 
 DEBT on a writing obligatory for the payment of one 
 hundred and twenty dollars. The declaration set forth the 
 sum in words as above. The note, when produced on 
 oyer, showed a promise to pay $120; the sum being ex- 
 pressed in figures. Held^ that the variance was immaterial. 
 
 Plea, in this case, that the obligation had been given to 
 the plaintiff in part payment of a tract of land purchased 
 of him by the defendant, which land had been previously 
 devised to the plaintiff; that the plaintiff knew of the 
 will, and had had it under his control for three years next 
 ensuing the testator's death, but had not, within that time, 
 caused the same to be proved and recorded. Held, on de- 
 murrer, that the plea was insufficient. 
 
 END OF NOVEMBER TERM, 1829. 
 
 (344)
 
 [*294] * CASES 
 
 ARGUED AND DETERMINED 
 
 IN THE 
 
 SUPREME COURT OF JUDICATURE 
 
 OF THE 
 
 STATE OF INDIANA, 
 
 A.T INDIANAPOLIS, MAY TERM, 1830, IN THE FOURTEENTH YEAR OF THE 
 
 STATE. 
 
 Cooper v. Adams and Another, in Error. 
 Arrest — Justification — Affidavit and Warrant. 
 
 TO an action for false imprisonment against a justice 
 of the peace and a constable, the defendants pleaded in 
 justification that an affidavit had been made before the 
 justice, charging the plaintiff with having violently as- 
 saulted, beaten and wounded the deponent, wherefore the 
 justice had issued his warrant, &c. Held, that the plea 
 was not objectionable, after a verdict in favor of the de- 
 fendants, for not showing that the assault and battery 
 were charged to have been unlawfully made. 
 
 The arresting of an offender and the retaking of him 
 on fresh pursuit after an escape constitute but one effect- 
 ive arrest. 
 
 The warrant of a justice of the peace, on a charge of 
 an assault and battery, commenced as follows : " The state 
 of Indiana, Allen county, ss : To William Brown, con- 
 stable of Adams township, greeting ; " Held, that no ob- 
 
 (345)
 
 294-295 SUPREME COURT OF INDIANA. 
 
 Frakes i'. Brown. 
 
 jection could be made to the warrant, on account of its 
 not repeating, in the mandatory part of it, the name of 
 the state. 
 
 A person arrested on a justice's warrant for a breach 
 
 of the peace can not maintain an action of false 
 
 [*295] imprisonment against *the justice or constable, in 
 
 consequence of a mere informality in the warrant, 
 
 provided the justice have jurisdiction. 
 
 It is always presumed by this Court, that all the evi- 
 dence necessary to sustain the verdict was given to the 
 jury, unless the contrary be shown by the record. 
 
 Frakes r Brown. 
 
 Alimony — Judgment Lien. — If a wife obtain a decree for a divorce and 
 for a certain sum as alimony, the decree for the alimony is a lien on the 
 real estate of the husband. 
 
 Judicial Sale — Keversal of .Judgment. — The reversal of a judgment 
 on error, after a sale of land under it on execution, does not affect the 
 purchaser's title. 
 
 Sheriff — Fieri Facias. — A fieri facias, by statute, expressly commands 
 the sherifTto make the money of the goods and chatties, lands and tene- 
 ments, of the debtor. 
 
 Judicial Sale — Personal and Real Property. — A purchaser of land at 
 SheriflP's sale, is not obliged to show that the debtor had not personal 
 property to satisfy the judgment. It is only necessary for him to show 
 the judgment of a competent Court, and the kind of execution which 
 authorizes the sheriff to sell. He has a right to presume that all the in- 
 termediate proceedings are correct. 
 
 Fraudulent Conveyance Against WifS. — A wife has a lawful claim 
 upon her husband for her maintenance; and if, during the pendency of 
 her petition for a divorce and alimony, a conveyance of his land be exe- 
 cuted by the husband in order to defraud his wife of her right to a sup- 
 port, and be received by the grantee with the same fraudulent design, the 
 conveyance as to her is void. 
 
 Injunction — Sale Contrary to Order of Court — Notice. — During the 
 pendency of a petition for a divorce and alimony, the Court may make 
 an order on the defendant requiring him not to dispose of any of his real 
 or personal property; but the purchaser of real estate from the defend- 
 ant will not be aifected by the order, unless he have actual notice of its 
 
 (346)
 
 MAY TERM, 1830. 295-296 
 
 Frakes v. Brown. 
 
 existence ; the pendency of the suit and entry of the order, not being 
 
 sufficient of themselves to avoid the conveyance (a). 
 Fraudulent Conveyance— By Whom Set Aside. — A deed, fraudulent as 
 
 to a judgment-creditor, may be set aside at the suit of the purchaser at 
 
 sheriff's sale under the judgment (b). 
 Same — Fraud of Grantee. — To render a deed fraudulent and void as to 
 
 creditors, there must be fraud in the grantee as well as in the grantor (c). 
 Same — Kemedy After Judicial Sale. — The purchaser of real estate at 
 
 sheriff's sale may obtain a decree setting aside a deed which had been 
 
 made to defraud the judgment-creditor, and securing the purchaser's 
 
 title against any claims under the fraudulent deed ; but the decree can 
 
 not vest the absolute fee in the complainant. 
 
 APPEAL from the Decatur Circuit Court. 
 
 Blackford, J. — This was a bill in chancery, in which 
 Brown, the complainant, prays that conveyance of a tract 
 of land, made by Reuben Jones to the defendant, may be 
 set aside as fraudulent and void. 
 
 The bill states, that, at the September term, 
 [*296] 1825, of the *Decatur Circuit Court, Martha Jones 
 filed a petition against her husband, Reuben Jones, 
 for a divorce and alimony ; that, during the same term, 
 the Court made an order upon the defendant not to dis- 
 pose of his property until the suit should be determined; 
 that, at the March term, 1826, the petitioner obtained a 
 divorce, and a judgment for the sum of 550 dollars as ali- 
 mony; that, by virtue of a fieri facias, issued upon this 
 judgment, the land in question was sold in !N"ovember, 
 1826, and the complainant was the purchaser. The bill 
 further states, that, during the pendency of the suit for a 
 divorce, viz., in November, 1825, the said land was con- 
 veyed fraudulently and without consideration, by Jones 
 to Frakes, to avoid the consequences of Mrs. Jones' suit. 
 Both the parties to the deed are charged by the bill with 
 notice of the pendency of the suit, and with fraud. 
 
 A demurrer and plea to the bill were filed; but these 
 may be considered as overruled by the answer, which 
 covers the whole case. The defendant, in his answer, in- 
 
 (a) 8 Ind. 427. (6) 35 Ind. 483. (c) 16 Ind. 172 ; 20 Id. 297. 
 
 (347)
 
 296-297 SUPREME COURT OF INDIANA. 
 
 Frakes i-. Brown. 
 
 sists that he is a bona fide purchaser for a valuable consid- 
 eration ; denies all fraud; and avers that he had no 
 knowledge of the order of the Court, nor of the pendency 
 of the suit referred to in the bill. 
 
 The material facts in this case are as follows: A short 
 time before the sitting of the Circuit Court in Decatur 
 county, in September, 1825, Reuben Jones and his wife 
 had a dispute and separated. At that term of the Court 
 Mrs. Jones filed a petition for a divorce and alimony; 
 and obtained an order against her husband, restraining 
 him from disposing of his property until the cause should 
 be decided. At the March term, 1826, the petitioner ob- 
 tained a divorce, and a judgment for the sum of 550 dol- 
 lars as alimony. Upon this judgment an execution of 
 fieri facias issued, and was levied upon the land in dis- 
 pute as the property of Jones. The complainant pur- 
 chased it in Noveml)er, 1826, at the sherift''s sale. 
 
 During the pendency of this suit for a divorce, and sub- 
 sequently to the restraining order, viz., about the 1st of 
 October, 1825, Jones, the husband, executed a bill of sale 
 to Frakes, the defendant in the present suit, for the whole 
 of his personal property, except a few small articles which 
 he sold to others. The property thus sold to Frakes, con- 
 sisted of horses, cattle, hogs, sheep, corn and beds. 
 [*297] Jones stated at the time of this sale *that he was 
 putting his property out of his hands to prevent 
 liis wife from getting any of it. About the same time, 
 Jones took his children to Frakes' house to be taken care 
 of, and went himself not long afterwards to the county 
 of Ripley, and resided with Frakes' son. Frakes, having 
 sold a considerable part of this property, and received the 
 money for it, went into Ripley county to see Jones, who 
 had then been there eight or ten days. On the evening 
 of his arrival, he told Jones that he had brought him the 
 money to pay for the land; and, the next morning, he 
 and Jones went together to Versailles. There, the con- 
 veyance of Jones' land to Frakes, charged in the bill to 
 
 (348)
 
 MAY TERM, 1830. 297-298 
 
 Frakes v. Brown. 
 
 be tVaudnleiit, was written at their request by the clerk 
 of the Court. At this time, Frakes, in presence of the 
 clerk, paid Jones about 40 dollars, and gave him a note 
 for some amount besides. This conveyance is dated the 
 21st of November, 1825. Immediately after this trans- 
 action Frakes returned to his home in Decatur county ; 
 and, in the latter part of December following Jones also 
 returned to that county. 
 
 At the time of the separation of Jones and his wife, 
 Jones and Frakes resided in the same neighborhood. 
 Their circumstances were moderate. Frakes owned 80 
 acl-es of land and some personal property ; but he was not 
 able to buy any more land without first selling his own. 
 Some time after these things had taken place, :N'athan 
 Grume, the son-in-law of Frakes, heard both Jones and 
 Frakes say, at different times, that all the buying and 
 selling between them was for the purpose of preventing 
 Mrs. Jones and her lawyers from getting any of her hus- 
 band's property. He also heard Frakes say that he re- 
 ceived the money from Jones and paid it back to him for 
 the land in the presence of the clerk of Ripley county. 
 Both Nathan Grume and his wife, the daughter of Frakes, 
 heard Jones tell Frakes that he wished him, when he sold 
 the land, to pay Joseph Jones his money ; and that the 
 balance he, Reuben Jones, would put in his pocket and 
 go away. To which Frakes replied by saying— yes. They 
 also heard Frakes say that w^ere it not for his daughter 
 Betsy he would give up the property to Jones. 
 
 There is a great deal of evidence as to whether Jones 
 and Frakes, at the time when the land was conveyed, 
 knew of the pendency of the suit for the divorce, 
 [*298] and of the restraining *order mentioned in the 
 bill. Taking all the depositions on the subject 
 together, we are satisfied that they both knew, at that 
 time, that there were some proceedings depending m 
 Court against Jones at the suit of his wife, in consequence 
 of his ifl-treatment of her, which might affect his prop- 
 
 (349)
 
 298 SUPKEME COURT OF IN"DIANA. 
 
 Frakes r. Brown. 
 
 erty. But, at the same time, there is no sufficient proof 
 that they knew what was the precise nature of those pro- 
 ceedings, or that the Court had made the order alluded 
 to. 
 
 The case was submitted to the Circuit Court upon bill, 
 answer and depositions. That Court set aside the deed 
 from Jones to Frakes as fraudulent; and decreed that 
 Brown was the owner in fee-simple of the land, and that 
 he should forever be quieted in his title acquired under 
 the sheriff's sale. Frakes and all claimants under him 
 were also perpetually enjoined from disturbing Brown's 
 possession of the premises. From that decree the defend- 
 ant has appealed to this Court. 
 
 The first objection to the comphiinant's claim is, that 
 the sheriff had no authority to sell the land, admitting it 
 to have belonged to Jones, It is said that real estate is 
 not liable on a decree for a divorce and alimony. The 
 answer to this is, that here is a judgment against Jones 
 for a certain sum of money, rendered by a Court having 
 jurisdiction of the cause; and that evefj' judgment of 
 this kind is, by statute, a lien on real estate. It is not for 
 this Court to look beyond the judgment in the case be- 
 fore us. It must be considered as having the same effect 
 as all other judgments for the payment of money, whilst 
 it stands unreversed and remains unsatisfied. Indeed, 
 were the judgment erroneous, and had it been reversed 
 since the sheriff's sale, that circumstance would not affect 
 the purchaser's title. Manning's case, S Co, Rep, 187; 
 R, C. 1824, p. 195. It is also said that an execution of 
 fieri facias, on which this land was sold, does not author- 
 ize a sale of real property. This is certainly a mistake. 
 The writ denominated by ns a fieri facias is an execution 
 expressly commanding the sheriff to make the money of 
 the goods and chattels, lands and tenements, of the debtor. 
 It is also said that it should appear that Jones had not 
 personal property to satisfy the judgment. This is not 
 necessary, A purchaser at sherift''s sale is only obliged 
 
 (350)
 
 MAY TERM, 1830. 298-^ J 
 
 Frakes v. Browu. 
 
 to show the judgment of a competent Court and the kind 
 of execution that authorizes the sheriff to sell. 
 [*299] He has a right to presume that *all the interme- 
 diate proceedings are correct. Armstrong v. Jack- 
 son, i^ov. term, 1822 (1). There are no grounds, there- 
 fore, for the first objection made by the appellant. 
 
 The other objection to the complainant's right under 
 the sheriff's deed is, that at the time the judgment was 
 rendered, the land did not belong to Jones; the appellant 
 having previously purchased it of him, bona fide, and for 
 a valuable consideration. That the purchase was made 
 by Frakes, previously to the judgment, is admitted by the 
 bill ; but that purchase, the complaint contends, was made 
 to defraud Mrs. Jones, and was consequently void. The 
 petitioner for the divorce, as the wife of Jones, had a 
 lawful claim upon him for her maintenance ; and if the 
 conveyance was made by Jones and received by Frakes, 
 with the intention of cheating Mrs. Jones out of her 
 right to a support, it was certainly void by the statute of 
 1824, against fraudulent conveyances. 
 
 The first ground relied upon to show the conveyance 
 void as to Mrs. Jones, is, that it was made pending her 
 suit, and subsequently to the restraining order. We do 
 not agree with the appellant, that such an order can not 
 extend to real estate; on the contrary, we conceive it may 
 by virtue of the statute of 1824, p. 157. But. at the same 
 time, in order to render it obligatory, there should be 
 actual notice of its existence. The mere pendency of the 
 suit, and the entry of the order, are not of themselves 
 sufficient to avoid the conveyance. In the record before 
 ns, there is no satisfactory proof that the proceedings in 
 Court against Jones were known to him and Frakes, 
 w'hen the deed was executed; and the case must conse- 
 quently be decided without any reference to those pro- 
 ceedings. 
 
 The other ground insisted upon against this conveyance 
 is, that there is sufiicient evidence to show it fraudulent, 
 
 (351)
 
 299-300 SUPREME COURT OF INDIANA. 
 
 Frakes v. Brown. 
 
 independently of the pendency of the suit for a divorce. 
 Upon this point, we entirely agree with the complainant. 
 The parties to the conveyance resided in the same neigh- 
 borhood, and were in moderate circumstances. Frakes 
 knew that Jones and his wife had recently had a dispute 
 and had separated; and he was bound to know that Mrs. 
 Jones had a lawful claim against her husband for main- 
 tenance. Under tliese circumstances, and without being 
 able in the opinion of his neighbors, to purchase any 
 
 real estate in addition to the small tract on which 
 [*300] *he .lived, Frakes suddenly buys the whole of 
 
 Jones' personal property, with a trifling exception, 
 and, shortly afterwards, his land also. It is in proof too, 
 that when Jones thus transferred his personal property, 
 he stated his object to be to prevent his wife from getting 
 any of it. If the case stopped here, we should be in- 
 clined to set aside the deed from Jones to Frakes as 
 fraudulent and void as to Mrs. Jones, and as to the com- 
 plainant also who is a purchaser under her judgment. 
 "We should be disposed to set it aside, not for Jones' fraud 
 alone — that of itself would be insufiicient — but because 
 Frakes might be viewed as the fraudulent assistant of 
 Jones in the attempt to cheat his wife out of her main- 
 tenance. 
 
 In flxing upon Frakes, at this stage of tlie cause, the 
 character of a fraudulent purchaser, we should decide 
 against him from circumstances merely; and not from 
 any positive evidence of his fraud. The case, however, 
 does not rest here. There is positive evidence that Frakes 
 is not a purchaser for a valuable consideration, nor bona 
 fide. The depositions of his son-in-law, and his own 
 daughter, are perfectly satisfactory to the Court,-that he 
 received the conveyance for the land in question, without 
 any real consideration; that the object of both Frakes 
 and Jones was to secure the property from Mrs. Jones' 
 claims; and that there existed a trust between them, ac- 
 cording to which the property was, at some future period, 
 
 (3.52) ■ -
 
 MAY TERM, 1830. 300-301 
 
 Taylor v. Owen and Others. 
 
 to be re-conveyed to Jones, or its proceeds paid to him. 
 An attempt was made to impeach the testimoin- of the 
 son-in-law, but, we think, without success. His evidence 
 is contirmed by that of his wife, and corroborated l)y a 
 variety of circumstances. 
 
 We have now taken a general view of this case, and 
 have come to the conclusion that the appellant's objections 
 to the sheriff's sale to Brown, the complainant, can not 
 be supported ; and that the deed from Jones to the appel- 
 lant is fraudulent and void. The decree of the Circuit 
 Court, therefore, so far as it relates to the setting aside of 
 the deed from Jones to Frakes, and the quieting of the 
 title of Brown against any claims under that deed, and as 
 it relates to the costs, must be affirmed. The other part 
 of the decree, which adjudges that Browti is the owner in 
 fee-simple of the premises, must be reversed. 
 
 Per Curiam. — The decree so far as it relates, &c. is 
 affirmed. The other part, &c. is reversed. To be cer- 
 tified, &c. 
 [*301] "^M' Kinney and Test, for the appellant. 
 Wick, for the appellee. 
 
 (1) Vol, 1 of these Kep. 210. 
 
 Taylor v. Owen and Others* 
 
 Covenants Runnixg With Land — Lease. — A. being the owner in fee of a 
 town, leased one of the houses to B. for a term of years, and' covenanted 
 in the lease, that B. should have the exclusive privilege of vending mer- 
 chandise in the town during the term. Soon after the commencement of 
 that term A. leased another house in the town to C. for a term of years 
 without any restriction as to the vending of merchandise; C. under-let a 
 part of this house to D. without restriction ; and P. commenced the sale 
 of merchandise on the premises so leased to him. D., before the date of 
 his lease, had notice of A.'s covenant with B., and C. had notice of the 
 same before D.'s sale had commenced. Held, that D. was not, under 
 
 Vol. II.— 23 (353)
 
 301-302 SUPREME COURT OF INDIANA. 
 
 Taylor v. Owen and Others. 
 
 these circumstances, prohibited from vending merchandise in the part of 
 the house which had been leased to him by C (a). 
 
 Same. — The right of the owner of real estate to carry on trade there to the 
 exclusion of all others, can not be made the subject of a separate convey- 
 ance, so as to prevent a subsequent holder of the property, without his 
 own agreement, from pursuing his lawful business there. 
 
 Same. — Such covenants as the above-mentioned, of A. with B., are merely 
 of a personal nature. They neither run with the land of the covenantor, 
 nor create any lien thereon either legal or equitable. 
 
 Same — Bona Fide Vendee. — A bona fide vendee or lessee of real estate, is 
 not affected by such a personal covenant ; and the circumstance of his 
 having had notice of it makes no difference. 
 
 Same — Lessee — Sub-Lessee. — The under lessee of real estate has a right 
 to pursue thereon any lawful business he chooses, which is not prohibit- 
 ed by the lease to his lessor nor by that to himself; and which is not in- 
 jurious to the premises. 
 
 Same — Breach. — A., by his unrestricted lease to C, above-mentioned, 
 broke his covenant with B. ; and he is liable for the breach to B., if the 
 covenant be valid, in an action at law. 
 
 ERROR to the Gibson Circuit Court. 
 
 Blackford, J. — This was a suit in chancery. The com- 
 plainant, Taylor, was a merchant in New Harmony, and 
 claimed the exclusive right to vend merchandise in that 
 town for ten years. He complains in his bill that he had. 
 been interrupted in the enjoyment of this exclusive priv- 
 ilege by the defendants, Owen, Rogers, and Moffatt; and 
 prays an injunction. The defendants, in their answers, 
 deny the existence of the right claimed by the complain- 
 ant. The facts in the case, necessary to be noticed, are 
 as follows : 
 
 Owen, one of the defendants, being the owner 
 [*302] in fee simple *of the town of New Harmony, and 
 having a mercantile establishment there, sold the 
 whole of his merchandise to the complainant, leased him 
 the buildings in which the business had been carried on, 
 and agreed in the lease that he should have the exclusive 
 right of keeping a store in the town for ten years. The 
 complainant agreed, on his part, to pay for the merchan- 
 dise within a certain time ; and also to pay a certain sum 
 
 (a) 6 Ind. 200. 
 
 (854)
 
 MAY TERM, 1830. 302-303 
 
 Taylor v. Owen and Others. 
 
 for the privilege contracted for, and as a rent for the 
 buildings. After the complainant had taken possession, 
 and had been trading there free from competition for sev- 
 eral months, Owen leased another house and lot in the 
 town for three years to Rogers, one of the* other defend- 
 ants, without any restriction as to trade, except that he 
 should not sell spirituous liquors. Rogers afterwards 
 under-let a part of this house to Moffatt, the other de- 
 fendant, free from any restriction ; and Moifatt com- 
 menced the vending of merchandise there. Previously 
 to the date of his lease, Moffatt had notice of the contract 
 between Owen and the complainant; and Rogers had 
 notice of it also, before Moffatt offered his goods for sale. 
 In the course of the proceedings, some depositions were 
 suppressed upon proof of the deponents being interested ; 
 and a motion for a continuance and to take further depo- 
 sitions was overruled; the Court not being informed 
 what was intended to be proved. 
 
 The Circuit Court dismissed the bill. 
 
 The object of this bill is to obtain a perpetual injunc- 
 tion against Moffatt, restraining him from the furthei 
 vending of merchandise in New Harmony. The claim to 
 this injunction is founded on the covenant of Owen that 
 the complainant should have, for ten years, the exclusive 
 right to keep a store in that town. The objection made 
 by Moffatt to the granting of this injunction against him 
 is, — that he has the lawful and unrestricted possession., 
 for a term of years, of the house and lot where he is en 
 gaged in trade; and that he has entered into" no contract 
 with any person not to vend merchandise there. This 
 objection is supported by the facts in the case ; and it is, m 
 our opinion, sufficient to prevent the injunction prayed for. 
 
 The idea of the complainant that the covenant in ques- 
 tion was a conveyance to him of the exclusive right of 
 vending merchandise in New Harmony, can not be sus- 
 tained. Such a right of the proprietor of real 
 [*303] estate to carry on trade upon his *premi8e8, can 
 
 (355)
 
 303 SUPREME COURT OF mDIANA. 
 
 Taylor v. Owen and Others. 
 
 not be made the subject of a separate conveyance, 
 so as to prevent the subsequent holder of the property, 
 without his own agreement, from pursuing his lawful 
 business there. This covenant between Owen and Tay- 
 lor is entirely of a personal nature. It neither runs with 
 the land of the covenantor, nor does it create any lien 
 thereon, either legal or equitable. Had the fee-simple of 
 the premises occupied by Moft'att, been sold and conveyed 
 to him by Owen, it appears to us very clear that the pur- 
 chaser's title could not have been aftected, nor his rights 
 arising from ownership diminished, by the collateral agree- 
 ment alluded to. A lessee for years stands in the same 
 situation, in this respect, as a vendee ; and if the covenant 
 before us would not interfere with the estate of the one, 
 it will Jiot with that of the other. "We put out of view 
 the question of notice in this case. We consider the mere 
 circumstance of a lessee's having notice of a covenant 
 like the present, to be of no more consequence to his in- 
 terest ill the premises than his knowledge of the lessor's 
 having contracted a debt would be. A bona fide ve]\ dee 
 or lessee of real property, for a valuable consideration, 
 has nothing to do with these personal contracts. 
 
 Whilst Owen had the rightful possession of the whole 
 town, he had of course a right to a monopoly of the busi- 
 ness. This monopoly he had it in his power to permit 
 the complainant to enjoy, by not selling any of the prop- 
 erty to any other person, nor leasing any of it without 
 inserting in the leases the necessary restrictions. In the 
 case before us, however, Owen has thought proper to 
 lease one of his houses and lots in the town to Rogers -for 
 three years, without restricting him as to the vending of 
 merchandise; and Rogers has under-let a part of the 
 premises to Mofiatt without any restriction. The conse- 
 quence is that Moff'att has the rightful possession of the 
 part of the house he occupies; and, from the nature of 
 the e-tate, he has the right to carry on there any lawful 
 business he chooses, which is not prohibited by the ori- 
 
 (356)
 
 Y TERM, 1830. 303-304 
 
 ffatt and Others, on Appeal, 
 
 is not injurious to the premises, 
 he owner of the reversion, can not 
 ) vending of merchandise there; 
 the complainant, who has no pre- 
 ;'hatever in the property. If the 
 in and Taylor, respecting the ex- 
 ferred to, be valid — as to which we 
 n — Taylor's remedy is by a suit at 
 en for a breach of contract. 
 
 these proceedings on the ground 
 )Ositions, and of a refusal to con- 
 ■ to take other depositions, can not 
 ntnesses whoso depositions were 
 y interested ; and, on the motion 
 not show^n that the depositions in- 
 ild be material in the cause. 
 
 cree is affirmed with costs. 
 
 1 Jadah, for the plaintiff, 
 ants. 
 
 .TT and Others, on Appeal. 
 NNiNG With Land — What. 
 
 5 for the disturbance of an exclu- 
 •chandise, &c. Plea, a lease, &c. 
 md judgment for the defendants. 
 )receding case of Taylor v. Oiven 
 
 \ here, on behalf of the appellant, 
 ener of the land, could dispose of 
 'ivilege appurtenant to, or grow- 
 bis case he has, by his covenant 
 imself of the right to vend mer- 
 )ny; and it is inquired, can Mof- 
 (357)
 
 303 SUPREME COURT 01 
 
 Taylor v. Owen and Oi 
 
 not be made the subject of a 
 so as to prevent the subsequent 1 
 without his own agreement, fron 
 business there. This covenant be 
 ]or is entirely of a personal nature 
 the land of the covenantor, nor ( 
 thereon, either legal or equitable, 
 the premises occupied by Mofl'att, 
 to him by Owen, it appears to us 
 chaser's title could not have been 
 arising from ownership diminished 
 ment alluded to. A lessee for y 
 situation, in this respect, as a vend 
 before us would not interfere wi1 
 it Avill not with that of the othei 
 the question of notice in this case 
 circumstance of a lessee's havii 
 like the present, to be of no mor 
 terest in the premises than his k 
 having contracted a debt would 
 or lessee of real property, for s 
 has nothing to do with these per 
 Whilst Owen had the rightful 
 town, he had of course a right ti 
 ness. This monopoly he had i 
 the complainant to enjoy, by no 
 erty to any other person, nor 1 
 inserting in the leases the neces 
 case before us, however, Owen 
 lease one of his houses and lots 
 three years, without restricting 
 merchandise; and Roo-ers has 
 premises to Moftatt without an 
 quence is that Moffatt has the 
 part of the house he occupies 
 tlie estate, he has the right to. 
 business he chooses, which is i 
 
 (356)
 
 MAY TERM, 1830. 303-304 
 
 Taylor v. Moffatt and Others, on Appeal. 
 
 ginal lease and which is not injurious to the premises. 
 Owen himself, who is the owner of the reversion, can not 
 restrain him from the vending of merchandise there; 
 much less can Taylor, the complainant, who has no pre- 
 tence to any interest whatever in the property. If the 
 covenant between Owen and Ta3'lor, respecting the ex- 
 clusive right referred to, be valid — as to which we 
 [*304] give no ^opinion — Taylor's remedy is by a suit at 
 law against Owen for a breach of contract. 
 The objection made to these proceedings on the ground 
 of a suppression of depositions, and of a refusal to con- 
 tinue the cause in order to take other depositions, can not 
 be supported. The witnesses whoso depositions were 
 suppressed were directly interested ; and, on the motion 
 for a continuance, it is not shown that the depositions in- 
 tended to be taken would be material in the cause. 
 Per Curiam. — The decree is affirmed with costs. 
 
 Hall, Dewey, Law and Judah, for the plaintiff. 
 Howk, for the defendants. 
 
 Taylor ?'. Moffatt and Others, on Appeal. 
 
 Covenants Running With Land — What. 
 
 ACTION on the case for the disturbance of an exclu- 
 sive right to vend merchandise, &c. Plea, a lease, &c. 
 Demurrer to the plea, and judgment for the defendants. 
 For the facts see the preceding case of Taylor v. Owen 
 and others. 
 
 Scott, J. — It is alleged here, on behalf of the appellant, 
 that Owen, being the owner of the land, could dispose of 
 the soil itself, or any privilege appurtenant to, or grow- 
 ing out of it; that in this case he has, by his covenant 
 with Tavlor, divested himself of the right to vend mer- 
 chandise in N^ew Harmony; and it is inquired, can Mof- 
 
 (357)
 
 304-305 SUPREME COURT OF INDIANA. 
 
 Taylor v. Moffatt. 
 
 fatt possess greater privileges than his lessor? To this it 
 may be replied, that an incorporeal hereditament may be 
 conveyed to one, and the right of soil to another, and 
 after a grant of the incorporeal hereditament, a convey- 
 ance of the land to which it is appendant is subject to 
 that grant. But the privilege of vending goods is a right 
 purely personal; it is not appended to the land or grow- 
 ing out of it; and when Owen covenanted with Taylor 
 that he should have the exclusive right to vend mer- 
 chandise in New Harmony, he did not by that covenant 
 strip his land of any of its appurtenances. As soon as 
 Moffatt obtained a lawful possession of the premises he 
 occupies, he, as a free man, brought his personal rights 
 into that place, as appendant to his person, and not to the 
 
 land, and as long as that possession continues, he 
 [*305] may lawfully exercise those *rights, unaffected 
 
 and unrestrained by any contract or agreement 
 to which he is not a party. We are clearly of opinion 
 that the appellant has no ground of action. 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Taylor i'. Moffatt. 
 
 Official Acts— Liability For— Justification.— If a judicial officer, 
 whether possessed of a general or a special jurisdiction, act erroneously or 
 even oppressively in the exercise of his authority, an individual at whose 
 suit he acts is not answerable, as a trespasser, for the error or misconduct 
 of the officer. But if a judicial officer whose jurisdiction is special and 
 limited, transcend his authority and act in a case of which he has no 
 cognizance, his proceedings are coram non judice, and no person can justify 
 under them. 
 
 Arrest— Justification — Jurisdiction of Court. — The defendant, in an 
 action of false imprisonment, justified under a writ of attachment, order- 
 ed, at his instance, by a Circuit judge. The writ was issued against the 
 plaintiff, for a contempt in disobeying a writ of injunction granted by the 
 judge. The injunction was granted, and the writ of attachment was or- 
 dered and issued, in vacation. Held, that the defence was insufficient; 
 
 (358)
 
 MAY TERM, 1830. 305-306 
 
 Taylor i: Moflfatt. 
 
 the judge having no authority, in vacation, to order the writ of attach- 
 ment (a). 
 
 ERROR to the Knox Circuit Court. 
 
 HoLMAN, J. — Taylor, claiming the exclusive privilege of 
 vending merchandise in the town of New Harmony, filed 
 a bill against Mofiatt and others, charging Moffatt with a 
 violation of this privilege by vending merchandise in 
 said town; and praying an injunction. An injunction, 
 agreeably to the prayer of the bill, was aw^arded by the 
 president judge of the circuit Court, in vacation. The 
 writ of iiijinicrion having been served upon Moffatt, and 
 it having been made to appear to the satisfaction of the 
 judge, by the affidavits of Taylor and others, that Moffatt 
 had disobeyed the writ and continued to vend merchan- 
 dise as formerly, the judge, by his order, directed the 
 clerk of the Circuit Court to issue an atta«hment against 
 Moffatt for his contempt of the writ of injunction. The 
 attachment w^as issued, and Moffatt was immediately com- 
 mitted to prison until the further order of the Court. 
 For this commitment, he brought this action of false im- 
 prisonment against Taylor, at whose instance the attach- 
 ment had been ordered. Taylor, together with a plea of 
 not guilty, pleaded the proceedings in chancery, the 
 judge's order, the attachment, &c., in justification ; 
 [*306] to w^hich *Moftatt demurred and had judgment. 
 The jury, on the trial of the general issue, as- 
 sessed the plaintiff's damages at 3,000 dollars; and judg- 
 ment was given on the verdict. 
 
 The merits of the defence made by Taylor depend on 
 the authority of the judge to order the attachment for 
 the contempt. If the judge was acting within his juris- 
 diction, the plea of Taylor was a bar to the action, with- 
 out any reference to the manner in which the judge's 
 authority was exercised. Much has been said, in this 
 case, about the ordering of the attachment without giv- 
 
 (a) 35 Ind. 285. 
 
 (359)
 
 306-307 SUrREME COURT OF INDIAI^A. 
 
 Taylor v. Moffatt. 
 
 ing Moffatt an opportunity of being heard, and about the 
 commitment for an unlimited time; but we conceive that 
 these are subjects that can not affect the merits of Tay- 
 lor's defence. For if a judicial officer, whether possessed 
 of a general or a special jurisdiction, act erroneously, or 
 even oppressively, in the exercise of his authority, an in- 
 dividual at whose suit he acts is not answerable, as a tres- 
 passer, for the error or misconduct of the officer. But if 
 a judicial officer, whose jurisdiction is special and limited, 
 transcend his authority, and act in a case of which he has 
 no cognizance, his proceedings are coram non judice, and 
 no person, much less a suitor, can justify under them. 
 Nor do we consider it necessary to determine a question 
 that has been raised in this case, as to the authority of a 
 president judge, in vacation, to award injunctions for any 
 other purpose except to enjoin proceedings at common 
 law. But passing this question, and fixing our attention 
 on the power of the president judge, in vacation, to order 
 an attachment to enforce obedience to a writ of injunc- 
 tion which he had previously ordered, we find before us 
 a question, in the determination of which we are but in- 
 directly aided either by English or American decisions. 
 
 In England, and in many of the United States, the 
 Courts of chancery are distinct from the common-law tri- 
 bunals, and are continually open for the exercise of any 
 necessary part of their jurisdiction. With us, the Cir- 
 cuit Court, with a general common-law jurisdiction, pos- 
 sesses all the chancery powers known to our law; but it 
 is open only at stated periods fixed by law, and can take 
 cognizance of no subject at any other time. This Court, 
 at its regular terms, agreeabl}^ to the act of assembly by 
 which it is organized, possesses. a general authority as a 
 
 Court of chancery to issue any process that may 
 [*307] be necessary *for canning its powers into eftect, 
 
 according to the usages of Courts of cliancerv; 
 and the president judge, in the absence of the two asso- 
 ciates, is competen.t to hold this Court. Had the g-rant 
 
 (360)
 
 MAY TERM, 1830. 307 
 
 Tavlor r. Moffatt. 
 
 of chancery powers terminated here, neither the president 
 indge, nur the two associates, nor all together, would 
 have possessed any chancery powers whatever in vaca- 
 tion ; but, in order to a proper distribution of justice, it 
 was considered necessary that there should be, at all times, 
 a tribunal that might act in cases of emergency, both at 
 common law and in chancery. Certain powers were, 
 therefore, conferred on the judges individually, and cer- 
 tain others on the president judge or the two asssociates. 
 Among the latter is the power of awarding injunctions. 
 iSTow it may be considered as a general rule, that a 
 grant of power to a Court, or a judge, to award process, 
 includes a power to enforce obedience to that process by 
 punishing disobedience. Hence, a Court of chancery ex- 
 ercises a general authority to issue attachments to punish 
 contempts of its process ; and there is no doubt but that 
 our Circuit Courts possess this power; but they can ex- 
 ercise it in term time only. The president judge, when 
 sitting as a Circuit Court, possesses this power in the 
 fullest extent known to our law. His jurisdiction is then 
 considered of a general and unlimited nature. But when 
 he is acting in vacation his situation is difterent; his juris- 
 diction is special and limited. He can not be strictly said 
 to be acting as a Court of chancery, inasmuch as the two 
 associates, in the presence of each other, possess as exten- 
 sive powers as he does ; and they are not even in term 
 time competent to hold a Court of chancery. So that it 
 may be questioned whether he. when adjudicating on the 
 subject-matter of an injunction regularly brought before 
 him, possesses any further powe.s than those specially 
 conferred by the act of assembly regulating the proceed- 
 ings in granting injunctions; and such as may be neces- 
 sary to prevent his being disturbed while he is thus oiSci- 
 ating. But when he has completed an order for an 
 injunction, and has closed his sitting, his power over the 
 subject m-ust be at an end. The case has passed from 
 ill III into the Circuit Court, and obedience to the writ of 
 
 (361)
 
 307-308 SUPREME COURT OF ^DIANA. 
 
 Taylor v. Moffatt. 
 
 iuj unction is to be enforced in the same way, us if it had 
 been awarded by the Circuit Court. He has no time 
 
 nor place given liini by the law, when or where 
 [*808] he can "^judicially take any further notice of the 
 
 subject, until the next term of the Circuit Court; 
 but he is in the same situation, as to an exercise of chan- 
 cery powers, as the Circuit Court is in vacation. Nor 
 does this view of the case impose any peculiar hardship 
 upon suitors. A complainant who has thus obtained an 
 injunction is in the same situation as if he had obtained 
 it in open Court. If the writ is disobeyed, he must wait 
 until the next term of the Circuit Court before he can 
 obtain process to enforce obedience to the writ, or to pun- 
 ish an individual who may have disobeyed it. 
 
 In this case, as we learn from the plea of Taylor, the 
 judge awarded the injunction at his chambers, on the 
 29th of September, 1827. The writ of injunction was 
 issued on the 1st of October; the affidavits show a vend- 
 ing of merchandise by Moffatt on the 4th, 5th and 6th of 
 the latter month; and the order for the attachment is 
 dated at the judge's chambers on the 8th. So that, from 
 the foregoing view of the subject, the judge had no juris- 
 diction of the case at the time he ordered the attachment. 
 The order was a nullity, and Taylor could not justify 
 under it. The plea was no bar to the action, and the Cir- 
 cuit Court very properly sustained the demurrer. See an 
 extensive view of the doctrine of chancery attachments 
 in Yates v. The People, 6 Johns. R. 337, and Yates v. Lan- 
 sing, 9 Johns. R. 395. 
 
 It was said by the plaintiff's counsel, in the argument 
 of this case, that the damages are excessive, and that a 
 new trial ought to have been awarded; but the statement 
 in the transcript of the record, that a new trial was ap- 
 plied for in the Circuit Court and refused, is no part of 
 the record, not having been made so by a bill of excep- 
 tions ; and we have taken no notice of it. 
 
 (362)
 
 MAY TEKM, 1830. 308-309 
 
 Hobson V. Doe, on the Demise of Harper, on Appeal. 
 
 Per Curiam. — The judgment is affirmed, with 1 per cent. 
 damages and costs. 
 
 HdU Dewey, Law, and Judah, for the plaintiff. 
 Howk, tor the defendant. 
 
 Hobson v. Doe, on the Demise of Harper, on Appeau 
 
 Evidence — Testimony of Absent Witness. 
 
 A PARTY is not permitted to prove what one of his 
 witnesses swore to on a former trial of the cause, until 
 he has proved that the witness is dead (1). 
 
 [*309] *(1) " What a witness, since dead, has sworn on trial between the 
 same parties, may be given in evidence either from the judge's 
 notes, or from notes that have been taken by any other person, who will 
 swear to their accuracy, or it may be proved by any person who will 
 swear from his memory to its having been given. Per Mansfield. 
 C J., Mayor of Doncasler v. Day, 3 Taunt. 262 ; Slrutt v. Bovingdon, 5 Esp. 
 56. The witness must be prepared to prove the verv words of the former 
 witness. Ennis v. Donisthome, 1 Phill. Ev. 200; 4 f. K. 290." Roscoe on 
 Ev. 58.' See, also, to the same eflfect, Melvm v. Whitiny, 7 Pick. 79. It is 
 held in Virginia that it is not necessary to prove the very uords of the de- 
 ceased witness, but that it is sufficient to prove the substance of his evi- 
 dence. Caton V. Lenox, 5 Rand, 31. The cases cited in the last-named 
 case, not mentioned above, are Bucku'orth^s case, T. Raym. 170; Pykev. 
 Crouch,! Ld. Ravm. 730; Co/cer v. Fancell, 2 FAY ms. 563 ; White y.Kib- 
 ling, 11 Johns. R.'l28; Miles v. O'Hara, 4 Binn. 108. 
 
 Rench V. Doe, on the Demise of Webster, in Error. 
 
 Ejectment — Title- Bond. 
 
 A PERSON claiming, bj virtue of a title-bond only, 
 the premises for which an action of ejectment was brought, 
 applied to be made a defendant in the cause. Held, that, 
 as the claim was merely of an equitable nature, the appli- 
 cation could not be granted. Smith v. Allen, 1 Blackf. 
 22; Lessee of Spencer v. Marckel, 2 Ham. 264. 
 
 (363)
 
 309-310 SUPREME COURT OJ^^ INDIANA. 
 
 Howk I. Kimball and Another. 
 
 HowK y. Kimball and Another. 
 
 Judgment — Payment and Assignment of. — If a debtor pay his judg- 
 ment-creditor a sum equal to the amount of the judgment, and thereby 
 cause the judgment to be assigned as a payment to another of his credi-. 
 tors, the transaction does not discharge the judgment, but the same con- 
 tinues valid in the hands of the assignee. 
 
 ERROR to the Clark Circuit Court. 
 
 HoLMAN, J. — Kimball and Gerry each held a judgment 
 against Faulkner and Jacob Teeple. Kimball's judg- 
 ment was the eldest, and was replevied with Moore as 
 replevin-surety : Gerry's was afterwards replevied with 
 Moore and Anderson as sureties. A lot in Charlestown, 
 the property of Jacob Teeple, was executed and sold on 
 Kimball's judgment, and Kimball became the purchaser; 
 leaving about 50 dollars of his judgment unsatisfied. 
 It seems that, notwithstanding the sale of the said lot, 
 
 Teeple still held a claim to it, which Kimball 
 [*810] was ^disposed to extinguish; and, in considertioii 
 
 of a deed by said Teeple relinquishing to Kimball 
 all said Teeple's claim to said lot, Kimball paid the said 
 Teeple the sum of 100 dollars, and assigned to John 
 Teeple, son of the said Jacob, the balance still due on his 
 said judgment. After this transaction, ah execution is- 
 sued on Gerry's judgment, which was levied on a tract of 
 land, the property of Moore, the surety in both replevin- 
 bonds; which tract of land was sold by the sheriff on said 
 execution, and Howk, the complainant, became the pur- 
 chaser. After this purchase, John Teeple caused an exe- 
 cution to be issued for the balance due on Kimball's judg- 
 ment, and had said execution, levied on the said tract of 
 land; claiming a lien on said land by virtue of the elder 
 judgment. Howls — contending that the transfer of the 
 judgment from Kimball to John Teeple was in fact and 
 equity a transfer to Jacob Teeple. and consequently a dis- 
 charge of said judgment, and that the holding up of the 
 
 (364)
 
 MAY TERM, 1830. 310-311 
 
 Howk ('. Kiiuball and Another. 
 
 same as unsatistied, and issuing an execution thereon, was 
 a fraud upon Moore, the surety, and the creditors of Jacob 
 Teeple — tiled his bill in chancery, making Kimball and 
 the two Teeples defendants, praying an injunction, &c. 
 The defendants answered, admitting the general state- 
 ments in the bill, but denying fraud, and alleging that 
 the transfer of the judgment from Kimball to John Teeple 
 was in payment of a debt due from Jacob Teeple to John 
 Teeple; said John having paid 52 or 53 dollars for the 
 benefit of said Jacob. A general replication was filed. 
 The cause was then heard in the Circuit Court on bill, 
 answers and exhibits; and the bill was dismissed. 
 
 The only question here presented is, was Kimball's judg- 
 ment discharged by Jacob Teeple in his contract with 
 Kindjall ? In settling this question, it must be taken that 
 this transaction between Kimball and the two Teeples 
 was conducted with good faith ; the charge of fraud in 
 the bill being expressly denied by all the answers. So 
 that we are not to presume fraud, unless it arises by in- 
 tendment out of the premises. It is also evident that 
 Jacob Teeple did not intend to discharge the judgment 
 in his contract with Kimball. So that, if the judgment 
 is to be considered as discharged, it must be on the ground 
 that Jacob Teeple could not stipulate for a transfer of the 
 judgment to a third person, and pay the consid- 
 [*311] eration of that transfer, without *necessarily dis- 
 charging the judgment, and thereby defeating the 
 intention of his stipulation. 
 
 Taking this transaction in its simplest form, and giving 
 it all its force in behalf of the complainant, let us con- 
 sider it as if Jacob Teeple had paid to Kimball a sum 
 equal to the full amount due on the judgment, as the con- 
 sideration of the transfer from Kimball to John Teeple. 
 'Now it is well settled that a payer may direct the man- 
 ner in which his payments are to be applied; and there 
 can be no question but that while Kimball held the judg- 
 ment against Jacob Teeple, said Jacob might have paid 
 
 (365)
 
 311-312 SUPREME COURT OF INDIANA. 
 
 Howk V. Kimball and Another. 
 
 him several sums of money for various purposes, without 
 discharging the judgment. If Jacob Teeple had paid 
 him a sum equal to the amount due on the judgment, to 
 be applied to some specific purpose, and he had so applied 
 it, it could not be pretended that the judgment would 
 have been thereby discharged. If, for example Jacob 
 Teeple had placed money in his hands to be paid over to 
 John Teeple, and had paid it accordingly, the judgment 
 Avould have been aflected by that transaction. In this 
 view of the case we are supposing that Kimball was to 
 pay Jacob Teeple 150 dollars for the lot; 100 dollars to 
 be paid to Jacob Teeple himself, and the balance to sat- 
 isfy a debt which he says he owed to John Teeple, or at 
 least to secure it by a judgment. The payment of the 
 judgment formed no part of the stipulations. The trans- 
 fer of it, as so much money, from Kimball to John Teeple, 
 was no more like a discharge of it, than if Kimball had 
 paid the money to Jacob Teeple, and Jacob had paid it 
 to John, and John had purchased the judgment from 
 Kimball with it; which might have been done in good 
 faith, and have produced the same result as has been pro- 
 duced by the agreement under consideration. So that if 
 Jacob Teeple did really, in relinquishing his claim to the 
 lot in Charlestown, pay to Kimball a price equivalent to 
 the balance due on the judgment, as the consideration of 
 the transfer from Kimball to John Teeple, yet as the 
 judgment never became his, and as he did not intend to 
 discharge it, it never was discharged either in law or 
 equity. We see nothing in the transaction more unfair 
 than the preferring one creditor to another. It seems 
 that Jacob Teeple had a price in his hands, by which 
 he might have discharged the judgment, and exoner- 
 ated his surety, Moore, and also furthered his creditor, 
 
 Gerry, in the collection of his judgment; but he 
 [*312] *preferred to let the judgment remain unsatisfied, 
 
 in order to secure a debt which he says he owed 
 to his son. But neither Moore nor Gerry has any greater 
 
 (366)
 
 MAY TERM, 1830. 312 
 
 Howk V. Kimball and Another, 
 
 reason to complain, that Jacob Teeple did not pay oti" the 
 judgment, instead of stipulating for its transfer, than 
 they have to comphiin that he did not pay it off with a 
 part of the 100 doUars he received from Kimball, or that 
 he did not apply the balance of the money he obtained 
 from Kimball, in lessening the judgment of Gerry and 
 the responsibility of Moore. 
 
 But it is not conclusive in this case that Kimball re- 
 ceived, or supposed he received, a full equivalent for this 
 judgment as a consideration of the transfer. He too 
 might have had his preferences; and he might have been 
 willing to transfer the judgment to John Teeple, for a 
 smaller consideration than that which would have in- 
 duced him to enter a discharge of the judgment in favor 
 of Jacob Teeple. Besides this, the means by which 
 Jacob Teeple procured this transfer to his son, as well as 
 the 100 dollars to himself, seem, on the part of Kimball, 
 to have been wholly gratuitous. As far as we are in- 
 formed, Kimball, by his purchase at sheriff's sale, bad as 
 complete a title to the lot in Charlestown as either the 
 law or Jacob Teeple could give him. So that Jacob 
 Teeple had no claim to the lot either in law or equity. 
 And neither law nor equity requires a resort to rigid 
 constructions in search of fraud in the disposition 
 of a fund which seems to have been obtained from Kim- 
 ball more as a matter of favor than as a matter or' richt. 
 
 We, therefore, discover nothing fraudulent in the ti-ans- 
 fer of this judgment to John Teeple; nothing to prevent 
 him from collecting the balance due upon it. Conse- 
 quently we see no reason for reversing the decree of the 
 Circuit Court. 
 
 Per Curiam. — The decree is affirmed with costs. 
 
 Howk, for the plaintiflf. 
 
 Thompson, for the defendants. 
 
 (367)
 
 812-313 SUPREME COURT OF INDIANA. 
 
 Shewel v. Givan, 
 
 ShEWEL V. GiVAN. 
 
 Interest — Open Accounts. — It is a general rule that interest is not al- 
 lowable on the open unliquidated accounts of merchants. 
 
 [■■'313] Custom — Foreign State — How Proven. — ^'Witnesses are not ad- 
 missible to jJrove a custom of merchants in any city of another state 
 allowing them to charge interest on their accounts, when the Courts of 
 that state have refused to recognize the custom. 
 
 Interest — Instruction. — Interest was charged by the plaintiff on an ac- 
 count for goods sold for which he sued. Held, that, all the evidence not 
 being shown, he could not, in error, complain of the instructions to the 
 jury, that they might allow interest or not at their discretion. 
 
 ERROR to the Marion Circuit Court. — Assumpsit by 
 Shewel against Givan. The defendant pleaded, inter alia, 
 non-assumpsit except as to a certain sum, and as to that 
 a tender. Verdict and judgment for the defendant. 
 
 HoLMAN, J. — Assumpsit for goods sold and delivered. 
 Several pleas, one of which is a tender and refusal of 150 
 dollars. The following bill of exceptions shows the state 
 of the case before the Circuit Court: "On the trial of 
 this cause, the plaintiff proved the sale and delivery of a 
 bill of goods at Philadelphia to the defendant, some time 
 in February, 1820, amounting to 347 dollars and 47 cents, 
 on a credit. It was also proved that the following account, 
 to wit, Mr. James Givan to Tho Shewel, Dr. 1820, Feb. 
 28. To merchandise at 6 mo. $347.37. March 6, ditto, 
 $165.14. Interest up to Jan. 1827, $194.54— $707.05. 
 Cr. 1821, Aug. 15, By cash. $131.97. 1822, Aug. 22, ditto, 
 $128.13. 182^6. Jan. 13, ditto, $76.44. Interest up to 
 Jan. 1827, $80.37. Balance, $290.14—707.05. Dr. 1827, 
 Jan. 2, To balance, $290.14. Interest. Cr. 1829, April 9, 
 By cash, $53.00. Interest— Thos. Shewel, Philad., was 
 shown to the defendant, who remarked that it was well, 
 or right, or made some such remark ; but that the plaintift' 
 must call on his son, John Givan, who had undertaken to 
 pay it, and that he the defendant had nothing more to do 
 with it. The said Givan also told Mr. Fletcher, that he 
 had seen the said account and that it was correct. The 
 
 (368)
 
 MAY TERM, 1830. 313-314 
 
 Shewel v. Givan. 
 
 plaintiff then introduced two of the merchants of India- 
 napolis, to prove that it was the custom, in Philadelphia, 
 for sellers to charge, and buyers to pay, interest on the 
 amount unpaid on such bills of merchandise after thev 
 became due; which evidence was objected to by the de- 
 fendant, and the objection was sustained by the Court. 
 To this opinion of the Court the plaintiff" excepts. The 
 plaintiff moved the Court to instruct the jury, that inter- 
 est should be allowed on the above account after it became 
 payable; which instruction the Court refused to give: but 
 
 they instructed the jury, that it was discretionary 
 [*314] with *them to allow interest or not, as they 
 
 should think proper under all the circumstances 
 of the case ; which instruction was also excepted to by the 
 plaintiff"." The jury found for the defendant. Amotion 
 for a new trial was made and overruled, and judgment 
 given on the verdict (1). 
 
 The errors assigned, and principally relied on, for the 
 reversal of this judgment are, the refusal of the Circuit 
 Court to admit evidence of the custom of the merchants 
 of Philadelphia, relative to interest on their accounts ; and 
 the instructions given to the jury, that it was discretiona- 
 ry with them to allow interest or not, as they should think 
 proper under all the circumstances of the case. ISTeither 
 of these positions can be supported by authority. As a 
 general rule, interest is not allowed on an open, unliqui- 
 dated account. Blaney v. Hendrick, 3 Wils. 205 ; De 
 HaviUand v. Bowerbank, 1 Camp. R. 50 ; Newell v. Gris- 
 7vold, 6 Johns. R. 45 : Henry v. Bisk, 1 Dall. 265 ; R. C. 
 1824, p. 227. But admitting the general rule, the plain- 
 tiff" claimed a right of showing, by witnesses, that the 
 custom of merchants in Philadelphia is otherwise. What- 
 ever doubts might be originated by this claim, if we did 
 not know the law of Pennsylvania on this subject, yet no 
 possible doubt can exist, when we know, b}' repeated de- 
 cisions, that the laws of that state are in accordance with 
 the general rule here laid down. See the above case of 
 Vol II.— 24 (369)
 
 314-315 SUPREME COURT OF INDIANA. 
 
 Shewel v. Givan. 
 
 Henry v. Risk ; and also the cases of Delaware In. Co. v. 
 Delaiinie, 3 Binti. 301; Crawford v. Willing. 4 1) aW. 2S6; 
 Obermyer v. Nichols, 6 Biiin. 159. Not only is such the 
 general law of Pennsylvania, but when an attempt was 
 made in that state, in the case of Henry v. Bisk, to set up 
 this custom of the merchants of Philadelphia to allow in- 
 terest in cases similar to this, it was repelled in the fol- 
 lowing language of Chief Justice M'Kean": " The point 
 has been repeatedly determined otherwise in this Court 
 as well as in the Courts of England, and therefore wit- 
 nesses can not be admitted to contradict the established 
 principles of the law." The instructions given to the 
 jury, that it was discretionary with them to allow interest 
 or not, as they should think proper under all the circum- 
 stances of the case, appear to us to be unexceptionable ; 
 inasmuch as when we apply the foregoing general rule of 
 law, with all its known exceptions, and the act of assem- 
 bly regulating interest in this slate, to such facts as the 
 jury were necessarily bound to find from the evi- 
 [^315] dence in this, we can *not say that such a case is 
 presented, as peremptorily required tlie jury to 
 allow any more interest on this account, than was ten- 
 dered by the defendant and brought into Court. 
 
 The motion for a new trial because the verdict was con- 
 trary to evidence need not be considered, as it is not said 
 in the bill of exceptions that we have all the evidence 
 that was before the jury. 
 
 Per Curiam. — The judgment is afiirmed with costs. 
 
 Fletcher and Merrill, for the plaintiff. 
 
 Brown, for the defendant. 
 
 (1) Form of the verdict, in such case, for the defendant: The jurors 
 &c., as to the first issue within joined between the said parties-, say upon 
 their oath, that the said James Givan did not undertake or promise to an 
 amount beyond the sum of 150 dollars within mentioned, in manner and 
 form as the said Thomas Shewel hath within in that behalf alleged ; and 
 as to the last issue within joined between tlie said parties, the jurors afore- 
 said, upon their oath aforesaid, say, that the said James Givan did tender 
 and offer to pay to the said Thomas Shewel, the said sum of 150 dollars, 
 parcel of the several sums of money in the said declaration within men- 
 
 (370)
 
 MAY TERM, 1830. 315-316 
 
 Pence and Another, Administrators, v. Smock. 
 
 tioncd in manner and form as the said James Givan hath within in that be- 
 half alleged. Arch. Forms, 146, 147. 
 
 The judgment for the defendant, on such a verdict, is the same as in or- 
 dinary cases, where there is but one issue, viz: that the plaintiff take noth- 
 ing by his writ, &c. ; and that the defendant recover his costs, &c. lb. 
 
 Form of the verdict, in such case, for the plaintifii": The jurors, &c., say 
 upon their oatii that the said James Givan did undertake and promise to 
 an amount beyond ttie sum of 150 dollars by the said James Givan within 
 in that behalf alleged, that is to say, to the amount of 250 dollars, parcel 
 of the several sums of money in the said declaration within mentioned, in 
 manner and form as the said Thomas Shewel hath within complained 
 against him; and they assess the damages of the said Thomas Shewel, by 
 reason of the not performing the promises and undertakings within men- 
 tioned, over and above the within mentioned sum of 150 dollars, and over 
 and above his costs and charges by him about his suit in this behalf ex- 
 pended, to 100 dollars. Arch. Forms;, 145, 146. 
 
 The judgment for the plaintiff, on such a verdict, is for 100 dollars, 
 together with costs, as in ordinary cases. lb. 
 
 Pence and Another, Administrators, v. Smock. 
 
 Conditions Dependent — Tender Before Suit. — The consideration of t 
 title-bond was — the obligee's agreement to convey certain land to the 
 obligor, on the same day on which the conveyance mentioned in the title- 
 bond was to be executed, and to pay the obligor two promissory no tea 
 before that day, one in money and the other in personal property. Held, 
 tliat the covenants were dependent and that the obligee's not conveying 
 nor offering to convey the land, the conveyance of which was the main 
 part of the consideration of the title-bond, was a bar to his recovery on 
 that bond. 
 
 [■■316] "•■■Failure of Consideration — Lost Bond — Practice. — Debt or 
 a bond. Plea, a failure of consideration, in consequence of the 
 non-performance, by the obligee, of the condition of a certain bond which 
 was lost. Held, that the loss of the bond did not preclude the defence. 
 
 Accord and Satisfaction — Pleading. — If a plea of accord and satisfactior. 
 by the delivery to the j^laintiff of certain property, does not state a time 
 when the delivery was made, it is bad on special demurrer. 
 
 Fraud — Pleading. — A general plea to an action on a bond, that the bond 
 had been obtained by fraud and covin, without setting out the particu- 
 lars of the fraud, is good. 
 
 ERROli to the Marion Circuit Court. 
 
 Blackford, J. — This was an action of debt by Peter 
 Smock ao-ainstthe administrators of John Smock, founded 
 on a penal bond of the intestate for 800 doHars, condi- 
 
 (871)
 
 -316-317 SUPREME COUKT OF INDIANA. 
 
 Pence and Another, Administrators, v. Smock. 
 
 tioned for his conveyance of a tract of land to the plain- 
 titi" on or before the 9th of Februarj^, 1827. The declar- 
 ation avers that the obligor, having no title, fraudulently 
 represented his title to be good ; and that he acquired no 
 title during his life-time, nor have the defendants acquired 
 any since his death. The defendants pleaded three pleas 
 iu bar. The first plea is, that the bond declared on was 
 given in consideration of the plaintiff's agreement by 
 bond to convey to the intestate, on the 9th of February, 
 1827, a quarter section of land, situate in Jefferson county, 
 in this state, being the land on which the plaintiff resided 
 at the time of the contract; and in consideration of the 
 plaintiff's note for 150 dollars, payable in personal prop- 
 erty on or before the 10th of December, 1826; and in 
 consideration of one 50 dollar note to be paid at the same 
 time. Averment, that the bond to the intestate is lost; 
 that the plaintiff had not conveyed the land to him, but 
 to another person named George Owens; that the plain- 
 tiff had failed and refused to deliver the personal prop- 
 erty contracted for, or any part thereof; and that the in- 
 testate had given up the 50 dollar note to the plaintiff at 
 liis request and without consideration. The second plea 
 is an accord and satisfaction, by the delivering to the 
 plaintiff a title-bond and two promissory notes, previously 
 given b}^ the plaintiff to the intestate. The third plea is, 
 that the bond stated in the declaration was obtained from 
 the intestate by fraud and covin. To all these pleas the 
 plaintiff specially demurred. The objections made to the 
 first plea are, 1st, the land is not sufficiently described ; 2d, 
 the contracts w^ere independent ; 3d, no demand of the per- 
 sonal property is shown; 4th, a lost bond can not 
 [*317] be set up as a defence. To the second plea.one "^of 
 the objections is, that no time is stated when the 
 bond and notes were given up. The third plea is objected 
 to, because the particulars of the fraud are not stated. 
 These demurrers w^ere all sustained by the Circuit Court; 
 
 (372)
 
 MAY TERM, 1830„ 317 
 
 Pence and Another, Administrators, v. Smock. 
 
 (hiniages were assessed upon a writ of inquiry; and final 
 Judgment was rendered for the plaintiff below. 
 
 It is objected to the first plea, that the land which was 
 to be conveyed to the intestate is not sufiiciently described. 
 It is set out as a quarter section of land in Jefterson 
 county, in this state, on which the plaintiff resided at the 
 time of the contract ; and which he has since sold to one 
 George Owens. This description is sufficiently particular. 
 The next objection to the first plea is, that the contracts 
 are independent. This objection can not be sustained. 
 The consideration of the bond sued on was the plaintifi^'s 
 agreement to convey certain land to the intestate, on the 
 same day on which the intestate's conveyance was to be 
 made, and to pay two promissory notes to the intestate 
 some time before. The covenant of the intestate, there- 
 fore, was not independent. His liability depended on the 
 plaintift''s previously conveying or offering to convey the 
 land contracted for, and on his being ready to deliver the 
 personal property at the time appointed, and on his pay- 
 ment of the 50 dollar note. Whether a failure as to any 
 small part of this consideration would be a good defence, 
 is not the question. Here the main part, to wit, the con- 
 veyance or ofter to convey the land on which the plaintiff 
 lived, was not performed. That failure is a bar to the 
 action. This last remark is a sufficient answer to the 
 third objection to this plea; because it shows that it is 
 immaterial whether the failure to deliver the personal 
 property is well pleaded or not. The plea w^ould be good, 
 even if there had been no default as to this part of the 
 consideration. It is further contended against the first 
 plea, that as the title-bond to the intestate is lost it con- 
 stitutes no defence. The argument goes on the ground 
 that an action at law will not lie on a lost bond. We are 
 of opinion, however, that an action at law may be brought 
 on such a bond ; and if so, it may furnish a good defence 
 in a case like the present. Reed v. Brookman, 3 T. K. 
 
 (373)
 
 317-318 SUPKEME COURT OF INJ)IAXA. 
 
 The State i'. Pearce. 
 
 151 (1), For these reasons, we consider that the first plea 
 filed is a good bar to the action. 
 
 The objection to the form of the second plea, 
 
 [*318] viz., that the *time of the delivery of the bond 
 
 and notes is not stated, is a good one. That point 
 
 is decided in Cmiyiingham v. Flinn, Kov. term, 1823 (2). 
 
 The demurrer to this plea was correctly sustained. 
 
 The third plea is per fraudem generally. The objection 
 is, that the particulars of the fraud are not set out. This 
 general mode of pleading fraud we conceive to be correct. 
 It is supported by good authority. Wimbish v. TailboiSy 
 Plowd. Com. 38, 54 ; Tresham's case, 9 Co. Rep. 108 ; Knight 
 V. Peachy, T. Raym. 303; 1 Chitt. PI. -553; 2 Chitt. PL 
 464, 603; 3 Chitt. PI. 563; 31ason v. Evans, Coxe's Rep. 
 182; Gordon v. Gordon, 1 Stark. Rep. 396 (3). 
 
 It is therefore the opinion of the Court that the demur- 
 rers to the first and third pleas should have been over- 
 ruled. 
 
 Per Curiam. — The judgment is reversed, &c., with costs 
 Cause remanded, &c. 
 
 Brown, for the plaintiff's. 
 
 Sweetser, for the defendant. 
 
 (1) In the case of Read v. Brookman, it was held that a deed may be 
 pleaded as "lost by time and accident," ■without making profert of it ; but 
 in the case of Hendy v. Stephenson, 10 East, 55, a justitication in trespass 
 was pleaded, which, after stating that the defendant was possessed of aright 
 of common under a grant, proceeded as follows : "which deed is since lost 
 or destroyed by accident and length of time, and therefore can not be 
 brought into Court here, and the date thereof is, and the particular parties 
 thereto are, for that reason, wholly unknown to the said defendant :" the 
 Court held this bad, as being much too loose in the description of the deed. 
 Note to Bi(/g v. Roberts, 3 Carr. & Payne, 43. 
 
 (2) Vol. 1 of these Rep. 266. 
 
 (3) Vide Huston el ul v. Williams, May term, 1833. 
 
 The State r. Pearce. 
 
 Adultery — Definition. — If a man have criminal intercourse with a mar- 
 ried woman, the ofience is adultery and not fornication. 
 
 (374)
 
 MAY TERM, 1830. 318-319 
 
 The State v. Pearce. 
 
 ERROR to the Johnson Circuit Court. 
 
 Blackford, J. — Indictment against the defendant for 
 living in open and notorious fornication with Elizabeth 
 Shafier. Plea, not guilty. On the trial, the de- 
 [*319] fendant proved that he was ^married to the woman 
 named in the indictment. Witnesses were then 
 offered, on the part of the state, to show that this woman 
 had a husband living at the time the defendant married 
 her, and that this fact was known to the defendant at the 
 time of his marriage. This testimony was objected to, and 
 the objection sustained. Verdict and judgment for the 
 defendant. There is no error in these proceedings. The 
 evidence rejected might have proved the defendant guilty 
 of adultery, but it could not have proved him guilty of 
 fornication. Jacob's Law Die. Tit. Adultery. The ques- 
 tion whether the defendant could be again tried, had 
 the testimony been improperly rejected, need not be 
 examined. 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Wick, for the state. 
 
 Letcher and Brown, for the defendant. 
 
 (1) If a man be indicted as an accessory tp a felony, and he be proved 
 guilty as a principal, he must be acquitted, because the minor offence is 
 merged in the greater. R. v. Gordon, 1 Leach, 515 ; Arch. C. L. 449. So, if 
 a man be indicted for a misdemeanor in burning his own house which was 
 adjoining other houses, and it be proved that, in consequence of the burning 
 of the defendant's house, the adjoining houses were burnt, the defendant 
 must be acquitted ; the misdemeanor being merged in the felony. Isaac's 
 case, 2 Euss. on C. 1659. 
 
 END OF MAY TERM, 1830. 
 
 (375)
 
 [*320] * CASES 
 
 AEGUED AND DETERMINED 
 
 IN THE 
 
 SUPREME COURT OF JUDICATURE 
 
 STATE OF INDIANA, 
 
 AT INDIANAPOLIS, NOVEMBER TERM, 1830, IN THE FIFTEENTH YEAB OF 
 
 THE STATE. 
 
 Kimble, Assignee, v. Adair. 
 
 Practice — Open and Close. — The party on whom the affirmative of the 
 issue lies, has a right to open and conclude the cause (a). 
 
 ERROR to the Franklin Circuit Court. — A suit was 
 brought in a justice's Court on a sealed note, by Kimble, 
 assignee, against Adair, the maker. The note reads as 
 follows: "On or before the first of March next, for value 
 rec'd, I promise to pay John Spangler, or order, 25 dol- 
 lars; provided the said Spangler has not made any com- 
 promise, or received any pay for timber cut on the land 
 which he purchased of W. H. Eads and has this day 
 given up. Witness my hand and seal this 27th of Oct, 
 1827. — Joh7i Adair, (seal)." Judgment in favor of Kimble. 
 Appeal to the Circuit Court by Adair; in which" Court, 
 conformably to the statute, Kimble was the phiiiititf and 
 Adair the defendant. On the trial in the Circuit Court, 
 the defendant having admitted the execution of the note, 
 
 (a) 11 Ind. 218; 37 /c?. 284. 
 
 (376)
 
 NOVEMBER TERM, 1830. 320-321 
 
 Kimble, Assignee, v. Adair. 
 
 was permitted to open and conclude the cause. Verdict 
 and judgment for the defendant. 
 
 HoLMAN, J. — The right of opening and concluding a 
 case belongs to him who holds the afhrmative ; 
 [*321] and from all that we *can learn of the nature of 
 the defence in this case the affirmative was with 
 the defendant. There being no plea or written defence, 
 and the execution of the note being admitted, there was 
 nothing required on the part of the plaintiff to secure his 
 case; and unless something was shown by the defendant, 
 under the proviso in the note, to defeat his claim, he 
 would obtain a verdict and judgment as a matter of 
 course. It seems to us that it lay upon the defendant to 
 show that the plaintiff had entered into a compromise, or 
 had received a compensation for cutting timber, as men- 
 tioned in the proviso, and this was affirmative matter. 
 "We are not able to comprehend how the plaintiff's claim, 
 under the circumstances of the case, could have been re- 
 sisted but by affirmative matter; and such matter as, if 
 formed into a regular plea, would have given the defend- 
 ant the right of opening and concluding the case. We, 
 therefore, see nothing on this point to authorize a reversal 
 of the judgment (1). 
 
 Per Curiam. — The judgment is affirmed, with costs. 
 
 M' Kinney and Morris, for the plaintiff. 
 
 Stevens^ for the defendant. 
 
 (1) Trespass qu.cl.fr. Plea, as to coming with force and arms and 
 whatever else was against the peace, not guilty ; as to the residue, a right of 
 way, which was denied by the replication. Held, that the defendant should 
 begin, as not guilty as to the force and arms was not a general issue, and 
 did not throw any necessity of proof on the itlaintiff. Hodges v. Holder, 3 
 Camp. R. 366. 
 
 A similar decision to the above was made in a subsequent ca.se, in which 
 Bayley, J. says, that the denial of what is against the peace is merelv to 
 save a fine to the king; that the party who has to prove the affirmative of 
 the issue ought to begin ; that where there are several issue, and the proof 
 of one of them lies on the plaintiff, he is entitled to begin, that the cpiestion 
 of damages never arises till the issue has been tried. Jackson v. Hesketh, 2 
 Stark. R. 518. 
 
 Trespass for an assault and battery. Plea, (without the general issue,) 
 tliat the plaintiff was a mariner on board a ship, of which the defendant 
 was commander, and that the plaintiff was engaged in a mutiny, to sup- 
 
 (377)
 
 321-322 SUPREME COURT OF INDIANA. 
 
 Vanblaricum and Another v. Yeo, Administrator. 
 
 press which the defendant committed the trespass. Replication, de injurki. 
 The defendant was directed to begin. Bedell v. Russell, Ry. & Mood. 293. 
 
 Assumpsit. Plea in abatement, that the promises were made jointly 
 with A. Replication, that they were not made jointly with A. On the 
 trial of this issue, the defendant begins. Fowler v. Coster, 3 Carr. & Pavne, 
 463. 
 
 In an action for a libel, there were pleas of justification, but the general 
 issue was not pleaded, and the affirmative of the issue was on the defend- 
 ant. Held, that the phiintifl'had not a right to begin, with a view to prove 
 the amount of his damages; but that the right to begin was with the defen- 
 dant. Cooper V. Wakley, 3 Carr. & Payne, 474. 
 
 Trespass for taking goods. The defendant pleaded (without the 
 [*322] general issue) a '^justification under a commission of bankruptcy. 
 Replication, denying the bankruptcy. The defendant was permit- 
 ted to begin. Cotton v. James, 3 Carr. & Payne, 505. 
 
 Yanblaricum and Another v. Yeo, Administrator. 
 
 Administrator De Bonis Non — Complaint By. — In an action by an ad- 
 ministrator de bonis 7ion, the declaration should state the name of the first 
 administrator, and contain an averment of non-pavment to him. 
 
 Seal — What. — An ink seal commonly called a scroll has liie_same effect, 
 by statute, as if it were made with wafer or wax. 
 
 ERROR to the Marion Circuit Court. 
 
 Blackford, J. — This was an action of debt. The dec- 
 laration commencs as follows: Joshua Yeo, adminis- 
 trator ffe bonis non of all and singular the goods and chat- 
 tels which were of Jesse M'Kay, deceased, complains of 
 David S. Vanblaricum and John Vanblaricum, &c. In 
 the first count the cause of action is stated to be a cer- 
 tain instrument of writing subscribed by the defendants, 
 in the following words: "On or before the 1st of Feb. 
 1826, we or either of us promise to pay Jesse M'Kay 
 or order 220 dollars, for value received this 29th of 
 Jan. 1825. — D. S. Vanblaricum, (seal). Jolm Vanblaricum, 
 (seal)." It is not averred that the defendants sealed this 
 instrument, nor is it called a writing obligatory. The 
 second count is upon a certain other writing, for the pay- 
 mei.t of the same amount of money, the substance of 
 which writing is described. The declaration assigns as 
 
 (378)
 
 NOVEMBER TERM, 1830. 322-323 
 
 Vanblaricum and Another v. Yeo, Administrator. 
 
 a breach of these contracts that the money had not been 
 paid either to M'Kay, to the phiintift", or to any other 
 person; and concludes with a profert of the letters of 
 administration de bonis non, granted to the plaintifi". The 
 defendants demurred specially to this declaration, and 
 assigned the following causes of dem.urrer: 1st, the dec- 
 laration does not state the name of the first adminis- 
 trator, nor does it aver a non-payment of the money to 
 him; 2dly, the instrument described in the first count is 
 not declared on as a writing obligatory or deed, though 
 it is shown to be sealed; 3dly, the writing described in 
 the second count is not alleged to be a writing obligatory, 
 nor to be an instrument in writing not under seal. The 
 plaintift' below joined in demurrer. The Circuit Court 
 considered the declaration good, and the plaintifl' ob- 
 tained a judgment. 
 
 The first objection, which goes to the whole 
 [*323] declaration, is, *that the name of the original ad- 
 ministrator is not given, nor is it stated that the 
 money had not been paid to him. This objection is fatal. 
 The defendants had a right to plead payment to the ori- 
 ginal administrator, without averring specially that he 
 was such administrator. To enable him to do this, the 
 declaration must state who that administrator was. The 
 plaintiff below, who is the defendant in error, relies upon 
 the case of Catherwood v. Chahaud, 1 Barn. & Cress. 150. 
 In that action, however, which was by an administrator 
 de bonis non, the declaration showed who was the original 
 administrator. The defendant there pleaded the general 
 issue; and the question on the trial was, whether the 
 plaintiff, in proving his title, was bound to produce not 
 only the letters of administration to himself, but also those 
 to the first administrator. The Court held that the first 
 letters need not be produced — not, however, because proof 
 of that administration was unnecessary, but because the 
 letters de bonis non were sufficient evidence of both admin- 
 istrations. That case, therefore, is not an authority for 
 
 (379)
 
 323-324 SUPREME COURT OF INDIANA. 
 
 Vanblaricum and Another v. Yeo, Administrator. 
 
 the omitting to aver, in the declaration, the existence ot" 
 the original administration. It is rather an authority 
 against such an omission. We have examined several 
 precedents of declarations, by administrators de bonis 7ion, 
 in Wentworth and Chitty. They all commence as fol- 
 lows : "A. B., administrator of all and singular the goods 
 and chattels, rights and credits, which were of C. D., de- 
 ceased, who died intestate, which were not administered 
 by E. F., also deceased, who was administrator of all and 
 singular the goods and chattels, rights and credits of the 
 said C. D., complains, &c." From this view of the pres- 
 ent case we are satisfied that this declaration is defective 
 for not giving the name of the first administrator, and for 
 not averring a non-payment to him. 
 
 This opinion makes it unnecessary to examine, particu- 
 larly, the subsequent objections. It may be remarked, 
 however, in passing, that we consider the instrument of 
 writing described in the first count to be a writing obli- 
 gatory. The ink seals used have the same effect as if 
 they were of wafer or wax. The putting on the seal, 
 whether with ink or with wax, is an agreement that the 
 writing is to be considered a deed. Stat. 1824, p. 20<5 (1). 
 The first objection goes to the wliole declaration, and the 
 demurrer to it should have been sustained. 
 
 Per Curiam. — The judgment is reversed, &c. 
 [*324] Cause *remanded, with directions to permit the 
 plaintifiT below to withdraw his joinder in demur- 
 rer, and amend his declaration. 
 
 Brown, for the plaintiffs. 
 
 Fletcher and Merrill, for the defendant. 
 
 (1) Accord. R. C. 1831, p. 407.— Brad liehl v. JfCormick, Nov. term, 1832. 
 In the eastern states, sealing with wafer or wax or some other tenacious 
 substance, as at common law, is requisite. In the southern and western 
 states generally, a scroll is a seal. Evidence is required, in Virginia, of 
 the intention of the parties to substitute the scroll for a seal. In New 
 York, a seal can only be made as at common law. 4 Kent's Cdinm. 2d Ed. 
 4";2. The following is the languas-e of the Court in Maryland : " From 
 the earliest period of uur judicial liistory, a scrawl has been considered as 
 a seal, and it would be too late at this day, and wotild be attended with 
 
 (380)
 
 NOVEMBER TERM, 1830 324-325 
 
 Green and Others v. Vardiman and Others. 
 
 consequences too serious, to permit it to be questioned. It is not necessary, 
 as lias been ai-gued, that the scrawl must be adopted by the obligor, by a 
 declaration in the body of the bond, or single bill, to make it his seal. It 
 is sufficient if the scrawl be affixed to the bond, or bill, at the time of its 
 execution and delivery. For, if he execute and deliver it with the scrawl 
 attached, it being considered here as equivalent to the wax or wafer, it is 
 as much his seal as if he had declared it to be so in the body of the instru- 
 ment. The fact of the clau.se of attestation not appearing in the usual form 
 of ",sif/?ifc/, sealed, and delivered," axn, in reason, make no difference; for the 
 question always is, is this the seal of the obligor? and if he has delivered 
 it with the .scrawl attached, it is his seal, and must be so considered ; for 
 whether an instrument be a specialty, must always be determined by the 
 fact whether the party affixed a seal ; not upon the assertion of the obligor, 
 in the body of the instrument, or by the form of the attestation." Trasher v. 
 Eierhari, 3 Gill c^ Johns. 246. 
 
 Green and Others v. Vardiman and Others. 
 
 Chancery Practice and Pleading — Answer. — It is a general rule that 
 an answer in chancery is to be taken as true, unless it be disproved by 
 two witnesses, or by one witness and corroborating circumstances (a). 
 
 Same. — This rule, however, does not extend to every thing which the 
 answer contains in favor of the defendant : it applies only to that part of 
 the answer which is directly responsive to the charges in the bill. 
 
 Answer in Avoidance — Practice. — Matters which are set up in avoidance 
 and which are not responsive to the bill, must, when in issue, be proved 
 by the defendant (h). 
 
 Same — Practice. — If the answer admit a fact, but rely on a distinct fact in 
 avoidance, the defendant must prove the fact on which he relies. 
 
 Statute of Frauds — Partnership. — A. and B. purchased jointly a land- 
 office certificate for a tract of land, on which there were some improve- 
 ments, and the assignment of the certificate was made to A., who had 
 paid more of the purchase-money than B. The purchasers, by a parol 
 agreement, divided the land. By this agreement, A. received several 
 acres more than B., together with the improved part of the premises, and 
 was to pay B. a certain sum as the difference in value of the two parts, 
 and to assist B. in improving his part. Each of the parties took posses- 
 sion of his own part of the premises. Held, that the agreement was not 
 affected, in equity, by the statute of frauds. 
 
 [=^325] *ERROR to the Fayette Circuit Court. 
 
 IToLMAN, J. — The chihlren and heirs of Nancy Green, 
 deceased, by Daniel Green their father and guar- 
 dian, filed their bill in chancery; stating that John Var- 
 
 (a) S Ind. 411, {h) 9 Ind. 132, 
 
 (381)
 
 3«>5 SUPREME COURT OF INDIANA. 
 
 Green and Others r. Vardinian and Others. 
 
 diman, their grandfather, died in Kentucky, leaving a 
 large estate real and personal, and leaving Mary Vardi- 
 man, his widow, and John T. Vardinian, Peter Vardiman, 
 William Vardiman, Morgan Vardiman, George W. Var- 
 diman, and the said Nancy Green, wife of the said Daniel 
 Green, and Elizabeth Wilson, wife of Benjamin Wilson, 
 his heirs; that Mary Vardiman and Morgan Vardiman 
 administered on his estate and received the whole, inclu- 
 ding two negroes, into their possession; that afterwards, 
 John T. and William jointly purchased the certificate for 
 100 acres of land, in paying for which John T. paid 200 
 dollars for William, and took the certificate in his own 
 name; that John T. died, leaving a large estate beside 
 said land and said debt from William, before he had re- 
 ceived his distributive share of his father's estate, leaving 
 the remaining heirs of John Vardiman, deceased, his law- 
 ful heirs ; that William and Morgan administered on his 
 estate ; that, before the distribution of either of said 
 estates Peter Vardiman died, leaving the remaining heirs 
 of John Vardiman, deceased, his lawful heirs; that George 
 W. Vardiman administered on his estate ; that Nancy 
 Green died, leaving the complainants her lawful heirs. 
 All the other heirs, &c., are made defendants. The bill 
 makes general and special charges of waste of the several 
 estates, and of a failure to pay the complainants their dis- 
 tributive share. One of the special charges is, that, after 
 the death of John T., William, instead of accounting for 
 the 200 dollars that John T. had advanced for him, set up a 
 pretended agreement made between him and the said 
 John T. in his life-time, that John T. should pay William 
 75 dollars for five acres of land, and also assist him to clear 
 five acres and build a cabin on it; which contract, if any 
 teok place, the bill charges to be void, the same not being 
 in writing. The bill requires special answers as to the 
 amount of each estate, and as to all the particulars of the 
 administration item by item: not only as to all to what 
 had been received, but also to what had been paid out; 
 
 (382)
 
 NOVEMBER TERM, 1830. 325-326 
 
 Green and Others r. Vardiman and Others. 
 
 including a full disclosure of all the circumstances of the 
 supposed agreement between John T. and William. 
 
 Mary Vardiman and Morgan Vardiman plead- 
 [*326] ed, that they *had fully administered the estate 
 of John Vardiman, deceased, except two negroes ; 
 that they, with the said Daniel Green, in the life-time of 
 ^N'ancy Green, entered into a written agreement to submit 
 all matters, relative to Nancy Green's share of said estate, 
 to arbitration ; that an award was made agreeably to said 
 submission, requiring certain payments to be made to said 
 Green, which they had made and received said Green's 
 acquittance ; referring to the arbitration-bond, the award 
 and the acquittance as a part of their plea ; that as to the 
 two negroes, all the heirs of the said John Vardiman, de- 
 ceased, after they came to full age, including the said 
 Daniel and Nancy Green, executed a power of attorney to 
 Morgan Vardiman, authorizing him to sell said negroes 
 for the benefit of said heirs, which power of attorney is 
 also made part of the plea; and that, by virtue of said 
 power, said Morgan did sell said negroes. These defend- 
 ants are ruled to show cause, why they should not answer 
 the bill as to all the particulars of their administration. 
 They show for cause, that they fully administered said 
 estate in the state of Kentucky, and settled and closed all 
 their administration accounts in a county Court in Ken- 
 tucky, agreeablj^ to the laws of that state. This cause 
 was adjudged insufiicient, and they are ruled to answer 
 the bill. In their answer they set forth all the particulars 
 of their administration, stating that they had fnll^^paidto 
 the said Daniel Green, in the life-time of Nancy Green, 
 her full share of said estate. 
 
 Morgan and William Vardiman answered according to 
 the requisitions of the bill; exhibiting, as they say, a full 
 and minute account of the administration of the estate of 
 John T. Vardiman, deceased, showing the amout that 
 was left for distribution ; of which, they allege they paid 
 Daniel Green, in the life-time of Nancy Green, her full 
 
 (388)
 
 326-327 SUPREME COURT OF INDIANA. 
 
 Green and Others i\ Vardiman and Others. 
 
 share. In answering that part of the bill that requires a 
 disclosure of the transactions between John T. and Wil- 
 liam, they say that John T. paid more than his proportion 
 of the money for the purchase of the land, and took the 
 assignment of the certificate in his own name; that Wil- 
 liam afterwards made him some payments; that when 
 they divided the land, John T. received about five acres 
 more than his proportion, and also received that part on 
 which was a spring and an improvement; that he agreed 
 to allow William 75 dollars for the dififerencein the 
 [*327] value of the two tracts, and also to perform *an 
 equal part of the labor in clearing five acres on 
 the tract allotted to William, and of erecting buildings 
 thereon equal to those on his tract ; that each took im- 
 mediate possession of his part, and continued to exercise 
 a quiet and undisturbed ownership over it; that John T. 
 did not perform said labor, and that in their administra- 
 tion, they selected men, who are named in the answer, to 
 estimate the value of the labor that John T. had agreed 
 to perform ; that said men estimated the value of the 
 labor at a sum which they, in their answer, aver it was 
 reasonably worth ; that a patent for said land was not ob- 
 tained during the life of John T., but was issued in his 
 name after his death. 
 
 George W. Vardiman answered as to his administration 
 of the estate of Peter Vardiman, deceased ; from which 
 it appears that, of the personal estate, nothing was left 
 for distribution ; that Peter left a tract of land, of which 
 Daniel Green, as guardian of the complainants, has re- 
 ceived their proportion. 
 
 The complainants filed a general replication. 
 
 There is no answer by Benjaniin and Elizabeth Wilson, 
 nor does it appear that any measures were taken to obtain 
 their answer. They seem to have been forgotten. We 
 mention this circumstance, by the wa}', not on account of 
 the bearing it will have in this case, but on account of 
 the inconvenience such proceedings sometimes occasion, 
 
 (384)
 
 NOVEMBER TERM, 1830. 327-328 
 
 Green and Others v. Vardiman and Others. 
 
 by the final disposition of a case before all the parties are 
 before the Court. No depositions were taken. The case 
 was finally heard on the plea, answers, replication and 
 exhibits; and the Circuit Court dismissed the bill with- 
 out prejudice. 
 
 By agreement of the counsel on each side, the exhibits 
 are not copied in the record, but it is admitted of record 
 in this Court that they are to be taken to be just as they 
 are alleged to be in the pleadings. 
 
 The first object in this case that presents itself for our 
 attention is the plea of Mary and Morgan Vardiman. 
 This plea presents a complete bar to the complainants for 
 any claim on the estate of John Vardiman, deceased. The 
 submission to arbitration, the award, the compliance with 
 that award, and the acquittance, all which we understand 
 were proved by the exhibits referred to, settle all matters 
 in controversy, except as to the negroes. The an- 
 [*328] swer, that they were afterwards ruled to ^rnake 
 of the particulars of their administration, presents 
 no new case ; but only shows the matters that Avere, or 
 might have been, in controversy before the arbitrators, 
 and which were settled by the award. The case of the 
 negroes rests upon difl:erent premises. Slaves in Ken- 
 tucky, if we are correctly informed, are not strictly per- 
 sonal estate ; and are not subject to be sold by adminis- 
 trators, unless for the payment of debts in the absence of 
 personal funds. So that the administrators would not be 
 liable for them any more than for lands, unless there was 
 a special charge that they had disposed of them, or had 
 refused to deliver them up to the heirs when demanded. 
 So that the general inference to be drawn from this plea, 
 that they had not administered these slaves, would exon- 
 erate them from the claim of the complainants. The ex- 
 ecution of a power of attorney by the heirs, which it 
 seems was proved by its exhibition, authorizing Morgan 
 Vardiman to sell these slaves, so far as it goes, shows that 
 the heirs considered the slaves as under their control, and 
 Vol. II.— 25 (385)
 
 328-329 SUPREME COURT OF INDIANA. 
 
 Green and Others v. Vardiman and Others. 
 
 subject to their order; and as this is rebutted by no cir- 
 cumstance iu the case, it must be considered as the fact. 
 So that the further allegation, that Morgan took posses- 
 sion of the slaves and sold them for the beneiit of the 
 heirs by virtue of the power, requires no proof in order 
 to discharge the administrators. The liability of Morgan, 
 as a special trustee, for the price of these slaves is not 
 within this case; as the bill only charges him as an ad- 
 ministrator, and as such he is not liable. But if it should 
 be considered that the bill was intended to charge him as 
 a special trustee, the charge is evidently deficient; as it is 
 not stated that he has received the price for which the 
 slaves were sold, and failed to pay it over ; or has in any 
 other way violated said trust. 
 
 The principal question, however, presented for consid- 
 eration iu this case, is how far the answer of a defendant, 
 to which there is a replication, is to be taken as evidence 
 of the facts stated in it? It is a general rule that an an- 
 swer is to be taken as true unless disproved by two wit- 
 nesses, or by one witness and corroborating circumstan- 
 ces; and when the term answer is taken in its strictest 
 sense, we believe there are no exceptions to this rule; 
 but an answer in this sense is not what a defendant may 
 say in his own behalf, but what he says directly respon- 
 sive to the charges in the bill. Matters, how- 
 [*329] ever, that are set '-^ up in avoidance, that are not 
 responsive to the bill, when in issue, must be 
 proved by the defendant; for if the answer admits a fact, 
 but insists on a distinct fact in avoidance, the defendant 
 must prove this fact. Hart v. Ten Eyck, 2 Johns. C. R. 
 62. On this part of the subject there are many nice dis- 
 tinctions and cases that it is difiicult to reconcile. An 
 executor, in his answer to a bill by the creditors for an 
 account of the personal estate, stated that he had re- 
 ceived 1,100^.; that in making up his accounts he gave 
 his bond for 1,000L; and that the testator gave him the 
 other 100^. for his trouble and pains in his business: it 
 
 (386)
 
 NOVEMBER TERM, 18b0. 329-330 
 
 Green and Others v. Vardiman and Others. 
 
 was held that this answer did not discharge the defend 
 ant of the 100^. ; the gift b}^ the testator being a fact distinct 
 from what he was reqnired to answer, and so in avoid- 
 ance of the demand against him. Gilb. Ev. 57. S. C. 
 cited also in Bnll. IST. P. 237, and in 1 Stark. Ev. 292. 
 Bnt it was held that if it had been one fact, as that the 
 testator gave him 100/., it ought to have been allowed, 
 lb. So, in Ridgway v. Darwin^ 6 Yes. 404, an executor 
 charged by his answer, is not permitted to discharge him- 
 self by affidavits of payments made to the testator in his 
 life-time. So a party charging himself in schedule to his 
 answer, can not discharge himself in another schedule 
 showing his disbursements. Boardman v. Jackson, 2 
 Ball & Beat. 385. And a party charged by his answei 
 can not discharge himself by it unless the whole is stated 
 as one transaction; as that on a particular day he re. 
 ceived a sum and paid it over; not that on a particulai 
 day he received a sum and on a subsequent day he paid 
 it over. Thompson v. Lanibe, 7 Ves. 587. Also to a bill 
 by the assignee of a note, stating that he gave a valuable 
 consideration for the note and requiring an answer to the 
 whole bill — the answer, stating that the note was assigned 
 for a usurious consideration, requires proof. Green v, 
 Hart, 1 Johns. R. 580. There are many similar cases. 
 which seem to render it doubtful what matters in an 
 answer require proof, and what are supported by the an- 
 swer itself; and those cases that turn on the unity of the 
 transaction Avhich creates a charge and discharge, are 
 peculiarly perplexing. But we can not conceive that any 
 of those cases are intended as exceptions to the general 
 rule— that the answer, so far as it is strictly such, being 
 directly responsive to the bill, is to be taken as true. 
 
 For, when the bill requires a disclosure of such 
 [*330] matters as may '-^^discharge the defendant, he is 
 
 compelled to answer and disclose those matters; 
 and if the disclosure amounts to a discharge, he is en- 
 titled to the full benefit of it. But although the bill 
 
 (387)
 
 330 SUPREME COURT OF INDIANA. 
 
 Green and Others v. Vardiman and Others. 
 
 might not require a disclosure of the matters set up in 
 avoidance, yet if the charge and discharge arise from 
 one indivisible transaction, and the answer sets forth 
 that transaction, the defendant shall have the full benefit 
 of the discharge. But, we conceive, the principal diffi- 
 culty in all these cases turns on the question, what facts 
 in the answer are responsive to the bill, and what are set 
 up in avoidance. Such was the point on which the case 
 of Green v. Hcui and some others evidoiitly turned. 
 We are therefore of opinion that, when the answer is 
 confined to such facts as are necessarilj^ required by the 
 bill, and those that are inseparably connected with them, 
 forming a part of the same transaction, the answer is to 
 be taken as true when it discharges, as well as when it 
 charges the defendant. See a note in the index to Johns. 
 C. Reports, 7 Vol. p. 75, as to the opinion of the Court of 
 Errors in Hart v. Ten Eyck, connected with a remark of 
 Spencer, J. on this subject in Simson v. Hart, 14 Johns. 
 R. 63. In the case before us the answers are directly re- 
 sponsive to the requirements of the bill, and are to be 
 taken as true notwithstanding the replication. 
 
 But it must be further observed that facts set forth in 
 an answer and considered as true, are to be considered 
 according to their legal import, whether they amount to 
 a discharge or not. Hence, it becomes necessar}^ to ex- 
 amine the nature of the facts thus set up by the answer. 
 In this case, the transaction between John T. and Wil- 
 liam Vardiman, respecting the tract of land jointly pur- 
 chased by them, requires attention. There is a consid- 
 erable difference between the bill and answer, as to the 
 part which each paid of the purchase-money; but the 
 most material difference arises out of the manner in which 
 the land was divided. The answer, which agreeably to 
 the foregoing rule we considered as true, states that in the 
 division of the land John T. received several acres more 
 than his proportion, and also a spring and improvements; 
 and agreed to alloAv William 75 dollars as the difference 
 
 (338)
 
 I^OVEMBER TERM, 1830. 330-331 
 
 Green and Others i'. Vardiman and Others. 
 
 in the value of the two lots, and to perform an equal part 
 of the labor of clearing Hve acres and erecting build- 
 ings on William's part, equal to those already erected on 
 his own part; that each took possession of his 
 P3311 ^respective part, and remained in the quiet enjoy- 
 ment of it. The bill states that if such an arrange- 
 ment did take place, it was void by the act for preventing 
 frauds and perjuries. But we conceive that that act is not 
 applicable to the case: First, the agreement as to the 
 division line, and as to the payment of the difference in 
 value between the two lots, is not within the act. A 
 parol agreement to abide by a division line is obligatory. 
 Jackson v. Dysling, 2 Caines, 198. And when a tract of 
 land held jointly by two can not be equally divided m 
 point of value, an agreement by one to pay the other the 
 difference in value is not, we conceive, within the terms 
 of the act ; for the act contemplates a transfer of lands or 
 some permanent interest in them. Bostwick v. Leach, 3 
 Day's Cas. 476. And a promise to pay for improvements 
 made on land is not within the act. Frear v. ffardenbergh, 
 5 Johns. R. 272. So an agreement to abate in the price, what 
 the land" falls short of the number of acres named in the 
 deed, is not within the act. 3fott v. Hurd, 1 Root, 73. 
 Secondly, the agreement to make an allowance tor the 
 diffcrcnco in the quantity of land, under the peculiar cir- 
 cumstances of the case, is not within the act. Viewing it 
 as a contract for the sale of land, it comes within one of 
 the exceptions that equity has always raised to the act— a 
 partial execution of the contract, and an execution so far 
 as it was in the power of the parties at that time. From 
 the manner of the original payments, it socms that Wil- 
 liam was indebted to John T. for a part of the original 
 purchase-monev. So it may be said that John T. had 
 paid William for this land, and had received quiet posses- 
 sion of it. So that if William had held the title, John T. 
 ■ mieht have enforced a specific performance of the con- 
 tract • or, as the title was virtually in John T., if he had 
 
 (389)
 
 331-332 SUPREME COURT OF INDIANA. 
 
 Cowgill V. Wooden, Sheriff. 
 
 not paid the purchase-money, William could have recov- 
 ered it; for an agreement to pay money in consideration 
 of the conveyance of land is not within the act, after the 
 conveyance has been executed. Chapman v. Allen, Kirby, 
 400. But William had no title to the land. He had only 
 an equitable claim, arising, as far as appears, by parol — a 
 trust, resulting from the payment of the purchase-money; 
 and such a trust has never been considered within the act. 
 Besides, that right which originated by parol may be re- 
 linquished by parol. When John T. agreed to allow Wil- 
 liam so much for the difference in the quantity 
 [*382] *of land, the transaction is more in the nature of 
 lessening William's claim upon him, than of a pur- 
 chase of so much land. Moreover, as John T. held the 
 certificate and would receive the title for the whole tract, 
 it would be impossible for William to coerce a convey- 
 ance of any part of the land without showing a clear 
 equity; and surely he could show no equity, as to the land 
 he had thus voluntarily relinquished for a valuable con- 
 sideration, either executed by payment, or executory by 
 promise. Thus we see nothing exceptionable in this ar- 
 rangement, and nothing to prevent the administrators of 
 John T. from setting up a discharge of this claim of Wil- 
 liam, as a legal defence against so much of the complain- 
 ants' demand. There are no other facts in the answers 
 that require particular attention. And we are of opinion 
 that they present a full answer to all the allegations of the 
 complainants. 
 
 Per Curiam. — The decree is affirmed with costs. 
 
 Smith, for the plaintiffs. 
 
 Hariden, for the defendants. 
 
 Cowgill v. Wooden, Sheriff. 
 
 Justice op Peace — Defences— Pleading. — The statute of 1827 requires 
 that, in justices' Courts, special matters of payment and set-off should be 
 
 (390)
 
 NOVEMBER TERM, 1830. 332-333 
 
 Cowgill I'. Wooden, Sheriff. 
 
 stated in writing ; but, in other cases generally, special pleas are not nec- 
 essary in those Courts. 
 
 Same. — In a cause commenced in a justice's Court, the defendant may 
 without pleading the general issue, give any matters in evidence which, 
 under that plea, are admissible in other Courts. 
 
 Same — Right to Jury. — A party has the same right to a jury, in a cause 
 commenced by notice and motion, that he has in other cases. 
 
 Jury — Challenge of — Choscn by PARTY.^If the sheriff, a party in the 
 cause, have summoned the jurors selected under the statute of 1827, the 
 array may, for that reason, be challenged. 
 
 Judicial Sale — Liability of Purchaser. — If a purchaser of real estate 
 at sheriff's sale refuse to pay the purchase-money, and the property be sold 
 for a less sum at a second sale, the liability of the first purchaser for the 
 difference, under the statute of 1825, may be established by parol evi- 
 dence. 
 
 Same — Right of Officer as to Bid. — The sheriff is not obliged to take 
 the mere word of any person, who may bid at a sheriff's sale, that he is 
 the agent of the execution-creditor. 
 
 Justice — Jurisdiction. — A justice of the peace has jurisdiction of a cause 
 commenced by notice and motion, if the notice set forth a claim, not ex- 
 ceeding 100 dollars, for which debt or assumpsit would lie. 
 
 APPEAL from the Owen Circuit Court. 
 
 Blackford, J. — Wooden sued Cowgill before a 
 [*333] justice of the '^'peaee b}^ notice and motion. The 
 substance of the notice is, that the plaintiff, as 
 sheriff' of Owen county, offered certain real estate for sale 
 on execution, and struck off' the same to the defendant 
 as the highest bidder ; that the defendant having refused 
 to pay the purchase-money, the plaintiff re-sold the land 
 to the highest bidder at the second sale, for 74 dollars and 
 99 cents less than the first bid; and that the defendant 
 was liable to the plaintiff' for that sum. The defendant 
 before the justice pleaded, previously to the. trial, six spe- 
 cial pleas in bar. A replication was filed to one of them, 
 and a general demurrer to four of the others. The re- 
 maining one seems to have passed unnoticed. Whilst the 
 trial was progressing, the defendant put in a seventh plea, 
 denying generally the whole cause of action. The justice 
 tried the cause on the merits, and gave judgment in favor 
 of the plaintiff for the amount claimed in the notice. • The 
 
 (391)
 
 333-334 SUPREME COURT OF INDIANA. 
 
 Cowgill V. Wooden, Sheriff. 
 
 defendant appealed to the Circuit Court. The questions 
 raised by the demurrers to the special pleas were argued 
 in the Circuit Court, and all those pleas, except one, were 
 adjudged to be good bars to the action. A jury was then 
 impaneled on motion of the plaintift", the merits of the 
 cause tried without objection, and a verdict and judgment 
 rendered for the plaintiff. 
 
 One of the pleas was that of the statute of frauds. The 
 others were intended to show that the defendant did not 
 bid for himself; but that he acted only as agent of the 
 creditor, under whose execution the land was sold, to the 
 amount of his claim; and as to the residue of the sum 
 bid, that he acted as agent of another execution-creditor, 
 who was entitled to the surplus. This special pleading 
 is unnecessary in justices' Courts. By the statute of 1827, 
 p. 30, special matters of payment and set-otf must be 
 stated in writing, but no special pleas are required in mat- 
 ters of defence like those relied on in the present case. 
 The seventh plea, which was the general issue, was filed 
 too late to be available, had it been necessary. But as 
 the parties went to trial on the merits, the case must be 
 considered now as if the general issue had been pleaded. 
 Indeed, the defence here made required no plea in writ- 
 ing, either general or special, in a justice's Court. "We 
 shall examine the record before us, therefore, without any 
 reference whatever to the validity of the pleas filed 
 [*334] by the defendant, considering him to have *had 
 the right to prove his defence if a good one, with- 
 out any written j^leas (1). 
 
 The first bill of exceptions shows that, on application 
 of the plaintiff", the Circuit Court impaneled a jur}^ to tiy 
 the cause. This was correct. There were matters of fact 
 to be determined, and a jury was the proper tribunal to 
 try them. Daicson v. Shace?^ Xov. term, 1822 (2). It also 
 appears by this bill that the regular panel of jurors had 
 been summoned by the plaintift' as sherift" of the county; 
 that the Court overruled a challenge to the array founded 
 
 (392)
 
 NOVEMBER TERM, 1830. 334-335 
 
 Cowgill V. Wooden, Sheriff. 
 
 on that cause; and that the coroner selected, from the 
 regular panel, the twelve jurors who tried the case. This 
 challenge should have been sustained. It is true, the 
 sheriff has not, under our statute, the same discretion in 
 summoning jurors that he formerly had. Stat. 1827, p. 
 29 (3). He would, however, now have a decided advan- 
 tage over his opponent in a cause, had he the right to ex- 
 ecute the venire. Some jurors, whose names were in the 
 venire, might be too intelligent or too independent to suit 
 his purpose. These he could omit to summon. The cause 
 of challenge relied on in this case is considered in New 
 York, under a statute for selecting jurors similar to ours, 
 to be sufficient to quash the array. Woods v. Roican, 5 
 Johns. R. 133. 
 
 According to the second bill of exceptions, the defend- 
 ant's bid was not reduced to writing ; nor is any such for- 
 mality required by the statute under which he was charged. 
 Stat. Dec. 1825, p. 50. The statute provides, that if the 
 highest bidder does not pay, he shall be liable to a certain 
 extent, should the land bring less at a second sale. It 
 appears to us, that the fact of the defendant's being the 
 highest bidder, as charged in the notice, might be proved 
 by parol These bids at sheriffs' sales are always made 
 publicly and by parol, and may be proved by the persons 
 present. The cause of action grows out of the defend- 
 ant's default in not following up his bid by a payment of 
 the money. The case stands independent of the statute 
 of frauds. If he made the bid and refused compliance, 
 he is liable under the statute of 1825 ; and his liability 
 may be established by parol evidence (4). It is further 
 stated by this bill, that the defendant offered to prove that 
 he was the agent of the first execution-creditor, in bid- 
 ding to the amount of his execution, and the agent of 
 another execution-creditor entitled to the residue 
 P335] of the *bid; but that the sheriff had no evidence 
 of the defendant's agency, except his own declar- 
 ations at the sale. The Circuit Court refused to receive 
 
 (393)
 
 335 SUPREME COURT OF INDIANA. 
 
 Cowgill V. Wooden, Sheriff. 
 
 this testimony, and we thiuk correctly. The sherifl was 
 not bound to take the bare word of any person who might 
 choose to bid and call himself an agent of the execution- 
 creditor. Were that the law, the sheriff would have no 
 means of avoiding serious and frequent imposition. 
 
 The third bill of exceptions states that the defendant 
 below oifered in evidence a deed from the debtor to a 
 purchaser for value, made before the judgment. This 
 evidence was rejected. The defendant's object was to 
 raise the question whether he was liable, if tlie land bid 
 for was not the debtor's at the time. The record, how- 
 ever, does not show what land, if any, was conveyed by 
 this deed ; and the question, therefore, intended to be 
 presented does not arise in this case. 
 
 The last bill of exceptions shows that an objection to 
 the jurisdiction of the Court was overruled. This objec- 
 tion is founded on the idea that the justice had no juris- 
 diction in the case of a notice and motion like the present. 
 By the statute of 1827, p. 30, the justices' jurisdiction is 
 extended to 100 dollars in actions of debt and assumpsit. 
 The statute of 1825, authorizing a notice and motion in 
 these cases, in any Court having jurisdiction, does not 
 require a particular name to be given to the action. The 
 notice before us sets forth a demand not exceeding 100 
 dollars, for which debtor assumpsit would lie; and con- 
 sequently exhibits a case within the jurisdiction of a jus- 
 tice of the peace (5). 
 
 The only error in these proceedings is, the overruling 
 of the challenge to the array. The judgment, on that 
 ground, must be reversed. 
 
 Per Curiam. — The judgment is reversed, and the ver- 
 dict set aside with costs. Cause remanded, &c. 
 Whitcomh and Gregg, for the appellant. 
 Hester, for the appellee. 
 
 (1) For the pleadings required injustices' Courts, vide K. C. 1831. p. 301. 
 The defendant always has the benefit of the general issue in a justice's 
 Court, without pleadinij it ; except the execution of at. instrument of 
 
 (894)
 
 NOVEMBER TERM, 1830. 335-336 
 
 The State, for the use of Putney v. Hicks and Others. 
 
 writing, which is the foundation of the action, be denied; in which case 
 There must be a plea filed supported by oath or affirmation. Ibid. 
 
 (2) Vol. 1. of these Rep. 204. 
 [«33G] «(3) Accord. R. C 1831, p. 291. 
 
 (4) If the purchaser neglect or refuse to pay, he is liable, on motion 
 of the officer makin'g the sale, to a judgment for the P"-h^se- jney a d t.^^^ 
 i.Pr cent with costs, without any stay ot execution. Provided, novve\ei, 
 hat the officer may on the day of sale or on a subsequent day, re-expose 
 t e p-operfy to ak and should the amount of the second sale not be equal 
 lothat'ofX first and the costs.of the second -V.^!' 1833? 65 
 liable for the deficiency, on motion ot the officer, btat. i«c.c., p. oo. 
 (5) Vide Washhurn v. Payne, ante, p. 216, and note. 
 
 The State, for the use of PutxNey v. Hicks and Others. 
 
 Pkactice-Oyer-Error.-To deny oyer where it ought to be granted is 
 
 error, but not e converso. , , • ^i 
 
 Official BoND-DEFENCE.-In an action in a sheriff's bond against the 
 principal and his sureties, for money collected by the sheriff" on an exe- 
 cution in favor of the plaintiff; the defendants can not plead that there is 
 no judgment on which the execution issued (a). 
 
 APPEAL from the Scott Circuit Court. 
 
 Scott, J.— This record presents the following case: In 
 the year 1827, while Hicks was sherift of Scott county, 
 an action was brought against him and his sureties, on 
 his official bond, at the instance of Thomas M'Camet, and 
 for his benefit. On the 19th of July, in that year, judg- 
 ment wiis rendered for 5,000 dollars, the penalty of the 
 bond, and damages were assessed in fovor of M'Camet, 
 to the amount of 26 dollars and 47 cents. On the 11th 
 of December, in the same year, Richard E. Putney sued 
 out of the office of the clerk of the Scott Circuit Court, 
 and placed in the hands of Hicks an execution of fieri 
 facias ao-ainst Daniel W. Griffith and his sureties on a 
 replevin%ond for the sum of 122 dollars and 82 cents, 
 which money Hicks collected on said execution, and re- 
 fused to pay over to Pu tney, the execution-plaintiff, on 
 
 (a) 32 Ind. 104 ; 37 Id. 457. 
 
 (395)
 
 336-337 SUPREME COURT OF II^DIANA. 
 
 The State, for the use of Putney v. Hicks and Others. 
 
 request. On the 18th of March, 1829, Putney sued out, 
 in the name of the state, of Indianu, his scire facias against 
 Hicks and his sureties, to recover the amount collected 
 on his execution, under the provisions of the statute of 
 1824. The defendants craved oyer of the judgment or 
 replevin-bond on which the execution issued, and demur- 
 red to the scire facias. The demurrer was overruled. 
 They then filed two pleas; first, that there was not 
 any record of the said supposed judgment and replevin- 
 bond, on which the said execution was issued j 
 [*337] "^and, secondly, that, before the suing out of the 
 scire facias, the plaintift" had instituted a pro- 
 ceeding by motion, in the Scott Circuit Court, against 
 the defendant Hicks for the same demand ; which proceed- 
 ing was still depending and undetermined. There was a 
 demurrer to the first plea. To the second the plaintiff 
 replied nul tiel record, on which issue was joined, and 
 judgment on that issue was for the plaintiff. The de- 
 murrer to the first plea was overruled, and judgment ren- 
 dered for the defendants ; and to reverse that judgment 
 is the object of this appeal. 
 
 Two special errors are assigned: 1st, that the Court 
 erred in granting oyer of the judgment or replevin-bond j 
 and, 2dly, that the validity of the judgment or replevin- 
 bond could not be inquired into by the defendants in this 
 suit. We think there is nothing in the first assignment. 
 To deny oyer where it ought to be granted is error, but 
 not e converso. Tidd's Pr. 530 ; 2 Ld. Raym. 970. See, 
 also, 2 Salk. 497; 2 Str. 1186; 1 Wils. 16 (1). The sec- 
 ond assignment rests on better authority. In thecase of 
 Wakefield v. Lithgoin, 3 Mass. Rep. 251, it was decided, 
 that where a sherifl' collected money on an execution, he 
 is bound to pay it over to the execution-plaintift'on de- 
 mand. Where the writ is from a Court of competent 
 jurisdiction, an error or irregularity in the rendition of 
 the judgment, or in the previous proceedings, furnishes 
 no excuse to the officer for withholding the money. The 
 
 (396)
 
 NOVEMBER TERM, 1830. 337-338 
 
 Blaney v. Findley and Others. 
 
 sheriff recognized the legality and authority of the exe- 
 cution by acting upon it ; and, after having collected the 
 money, it is not^for him to say that the writ was illegal or 
 unauthorized by the judgment. In the case of Smith v. 
 Boiclrr, 1 Mass. Rep. 81, ir was held that the officer is 
 not holdeii to look beyond his execution ; and, whether 
 the judgment be erroneous or not, is a question with 
 which he has nothing to do. See, also, The People v. 
 Waters, 1 Johns. Cas. 137. The judgment must be re- 
 versed. 
 
 Per Curiam.— The judgment is reversed with costs. 
 
 Cause remanded, &c. 
 
 Stevens, for tlu appellant. 
 Thornton, for the appellees. 
 
 (1) Osborne e( al v. Reed, Vol. 1, of these Rep. 126. The parly to whom 
 oyer is improperly granted can not complain, the error being to his advan- 
 tage. 2 Ld. Raym., cited in the text. 
 
 [*338] *Blaney v. Findley and Others. 
 
 Judgment— Reversal— Practice.— If the facts relied on to reverse a 
 judgment be not shown by the record, and the judgment would be au- 
 thorized by any facts which might have been legally before the Court, 
 the judgment must be affirmed (a). 
 
 Attachment-Bond— Approval— Practice.— An attachment-bond must 
 be approved of by the clerk who issued the writ. His approval, however, 
 is not conclusive but only prima facie evidence of the sufficiency of the 
 sureties. 
 
 ERROR to the Jefferson Circuit Court. 
 
 HoLMAN, J.— Blaney commenced a suit by foreign at- 
 tachment against Findley, Harrison and Burnett, in the 
 Jefferson Circuit Court. The writ issued on the 23d of 
 June, 1829, and was levied the same day on the lands of 
 Burnett, and returned at the Jul y term of said Court. 
 
 (a) See 51 Ind. 271 ; 1 Id. 263 ; 60 Id. 37 ; 37 Id. 145. 
 
 (397)
 
 338-339 SUPREME COURT OF INDIAI^A. 
 
 Blaney v. Findley and Otherf?. 
 
 At that term notice of the pendency of the attachment 
 was ordered to be published. In the ensuing vacation 
 the defendants entered special bail. At the next term 
 the plaintiff' filed his declaration, and the defendant moved 
 the Court to quash the attachment and dismiss the suit, 
 because, 1st, the affidavit on which the proceedings are 
 founded is informal and insufficient in law to warrant the 
 issuing of the attachment; 2dly, the writ of attachment 
 is informal and erroneous; 3dly, the bond, given by the 
 plaintiff, is informal and insufficient in several particu- 
 lars, to wit, 1st, the sureties are insufficient in a pecuniary 
 point of view; 2dly, the plaintiff" and his sureties reside 
 in Floyd county; 3dly, the clerk of the Jefferson Circuit 
 Court, who issued the attachment, did not approve of the 
 bond and sureties. The Court sustained the motion, and 
 set aside the proceedings, and gave the defendants a 
 judgment for costs. 
 
 There is no bill of exceptions to show us on what 
 grounds the Court decided ; but as the presumption of 
 law is in favor of the decision, if there were any facts that 
 could have been legally before the Court that would au- 
 thorize their judgment, we are bound to sustain it. The 
 affidavit states that the defendants were "justly indebted," 
 instead of saying in the words of the act of assembly, that 
 the debt was "justly due and owing." If this case rested 
 solely on the objection to this affidavit, it would demand 
 
 particular attention ; as it is, we shall pass it 
 [*339] *with a single remark, that it is always safe to use 
 
 the terms of the act of assembly, and frequently 
 unsafe to use others. The bond in this case, it seems by 
 a statement in the record, was taken and acknowledged 
 before a justice of the peace of Floyd county, who is cer- 
 tified to be a justice of the peace by the clerk of the Floyd 
 Circuit Court. The said clerk also certified that, in his 
 opinion, the sureties were responsible men and good for 
 the penalty of the bond. This bond was filed in the oflfice 
 of the Jefferson Circuit Court before the attachment 
 
 (398)
 
 NOVEMBER TERM, 1830. 339-340 
 
 BUiney v. Findley and Others. 
 
 issued. The act of assembly requires, that the bond and 
 sureties shall be approved of by the clerk who issues the 
 attachment. R. C. 1824, pp. 67, 69 (1). 
 
 The first objection to the bond is, that the sureties were 
 insufficient. The bond is in the penalty of 7,000 dollars, 
 and the clerk of the Floyd Circuit Court certifies that the 
 sureties are good for that amount. This certificate, not 
 being official, is a mere private opinion in writing, and 
 inadmissible as evidence of the fact thus certified. What 
 evidence was before the Court of the insufficiency of the 
 sureties, is unknown to us; but that they might have had 
 satisfactory evidence of the fact, and might have dismissed 
 the suit for want of sufficient sureties, is ample ground 
 on which to sustain their decision. But it is contended 
 that, before the Court dismissed the suit for the want of 
 sufficient sureties, they should have given the plaintiff an 
 opportunity of perfecting his bond. We do not know that 
 the plaintiff desired such a privilege, or was in a condition 
 to have profited by it; nor do we know what the Court 
 did or refused to do on the subject. Whatever might have 
 been said or done about this matter, forms no part of a 
 regular record. It was unnecessary for the Court, in order 
 to justify their decision, to show of record, that they called 
 upon the plaintiff to file a new bond, and that he refused 
 to do so. This objection to the bond might be sustained, 
 if it were certain that the clerk had approved of the sure- 
 ties, which the defendants contend was not the fact, as 
 the approval of the clerk, though priyna fa 'ie evidence of 
 the sufficiency of the sureties, is not conclusive. The de- 
 fendant may show that the fact is otherwise; and the 
 Court has a superintending control over the discretion 
 thus exercised by the clerk. It is objected that this 
 motion was made too late; but as it was made at 
 [*340] the first term after notice was given *of the pen- 
 dency of the attachment, and at the first appear- 
 ance of the defendants, this objection cannot be supported. 
 
 (399)
 
 1^0 SUPREME COURT OF INDIANA. 
 
 Knipe v. Knipe. 
 
 Per Curiam. — The judgment is affirmed with costs. 
 SullUan and Farnham, for the plaintiff. 
 
 Stevens, for the defendants. 
 
 (1) Accord. R. C. 1831, pp. 75, 82. 
 
 Knipe v. Knipe. 
 
 Statute Limitations— Running Accounts. — In 1804, the father of B. 
 and C. delivered to B., in England, 75/., with directions to pay the same 
 to C. on the latter's arrival in America. In 1818, C. came to America 
 where B. was then resident, and accounts on both sides immediately 
 commenced between them, and continued running until 1826. The 75/. 
 was charged in the account of C. again.st B. Held, that these mutual ac- 
 counts, including the 75/., were not within the statute of limitations; 
 some of the items having been furnished within five years before the com- 
 mencement of the suit. 
 
 ERROR to the Wayne Circuit Court. 
 
 Scott, J. — Thomas Knipe brought an action of debt 
 against John Knipe in the Wayne Circuit Court. In the 
 declaration the defendant is charged, among other things, 
 for money had and received and interest thereon. The 
 defendant pleads to so much of the plaintiff's declaration 
 as goes to charge him with money had and received, and 
 interest thereon, that no action accrued to the plaintiff 
 within live years nex-t before the commencement of the 
 suit. The plaintiff replies that the money had and received 
 and the interest thereon, were items in an account cur- 
 rent commenced in the year 1818, and continued ruiming 
 open, and unsettled, until the year 1826; and that the 
 last item of the said account accrued within five years 
 next before the commencement of the suit. The defend- 
 ant rejoins, that the said supposed money was not an item 
 in the account current between the said parties ; but that 
 the same was received, if received at all, more than five 
 years before the commencement of the said mutual deal- 
 
 (400)
 
 NOVEMBER TERM, 1830. 340-341 
 
 Kiiipe V. Knipe. 
 
 ings; and concludes to the country. On the rejoinder 
 issue is joined. There are other pleas and issues, but the 
 only objection to the judgment grows out of the issue 
 stateti. As no exception was taken to these pleadings in 
 
 the Circuit Court, we will now inquire into their 
 [*341] ^correctness. It may be remarked, however, that 
 
 the rejoinder contains two allegations, the first of 
 which only responds to the replication, and is that only 
 on which, without a surrejoinder, an issue could regularly 
 have been taken. The issue, then, may be considered as 
 taken on the first member of the rejoinder, and the other 
 part may be rejected as surplusage. This, with other 
 issues, was submitted to the jury, and there was a general 
 verdict for the plaintiflf. A motion for a new trial was 
 made by the defendant's counsel, and overruled by the 
 Court. Judgment on the verdict. 
 
 It was in proof, as appears by a bill of exceptions, that 
 the defendant had admitted, at diflFerent times, that he 
 had received of his father, in England, 150 pounds ster- 
 ling, in the year 1804, one-half of which was for the 
 plaintift', who was at that time a resident of England ; 
 that the said money was to be paid to the plaintiiF when 
 he should arrive in America ; that, on his arrival in Amer- 
 ica, the defendant was to furnish him with necessaries for 
 his family subsistence for one year, the cost of which was 
 to be taken out of his part of the money ; that plaintitt" 
 came to America in 1818; that accounts on both sides 
 commenced at that time between the said parties, for mu- 
 tual dealings in other matters together with the necessa- 
 ries aforesaid, and continued open and running between 
 them on both sides until the year 1826; that the said 
 money was charged in the plaintiff''s account, but whether 
 with or without the knowledge of the defendant was not 
 proved, and that the accounts on both sides still stood 
 open till the commencement of this suit. The jury, in 
 their verdict, included the sum of 75?. sterling, with inter- 
 est thereon from September, 1818. On this ground the 
 Vol. II.— 26 (401)
 
 341-342 SU'KREME COURT OF INDIANA. 
 
 Knipe t. Knipe. 
 
 motion for a new trial was predicated ; and on this ground 
 the plaintitt' in error claims a reversal of the judgment. 
 It is alleged by the plaintiff in error that the 75/., ji 
 moiety of the 150/., having been received in England so 
 long before the commencement of the mutual dealings of 
 the parties in America, could not be considered as form- 
 ing an item in their account current. The money received 
 in England was to be paid to the defendant in error on 
 his arrival in America, which it appears was in 1818. No 
 action accrued to him till that time. Immediately on his 
 arrival he was, by agreement, to be furnished with 
 [*342] necessaries for his family subsistence out *of that 
 fund. It is natural and reasonable in this state 
 of their transactions, that Thomas Knipe, the defendant 
 here, in keeping a regular account of his dealings with 
 John Knipe, would place the money, in the hands of John, 
 on the debit side of the account, and credit the different 
 sums of money or other articles as he received them. 
 This would be honest dealing. And had the parties 
 thought proper to close their business and adjust their 
 accounts within two or three years, no one would suppose 
 that this deposit, in the hands of John, would be omitted 
 in balancing their mutual accounts. Then if that money 
 was, at any time, so connected with the mutual dealings 
 of the parties, that a fair and honest settlement of their 
 accounts could not be made without taking it into, the 
 calculation, it must remain an item until their accounts 
 are finally liquidated. The circumstance of -the later 
 items being of so recent a date, as to be within the limit ' 
 of the statute, was a sufficient justification of the verdict. 
 2 Saund. 127, m 6; 6 T. R. 189 (1). 
 
 Per Curiam. — The judgment is affirmed, with '2 per cunt, 
 damages and costs. 
 
 Bariden, for the plaintiff. 
 
 Smith, for the defendant. 
 
 (1) " Such accounts as concern the trade of merchandise between mer- 
 chant and merchant are excepted from the operation of the statute. Where 
 
 (402)
 
 NOVEMBER TERM, 1830. 342-343 
 
 Larkin v. Wilburn, in Error. 
 
 there have been mutual, current, and unsettled accounts between the par- 
 ties, and any of the items are within six years, such items are evidence (un- 
 der the replication that the defendant did promise, &c.) as an admission of 
 there being an open account, so as to take the case out of the statute, like 
 any other acknowledgement. Catling v. Skoulding, 6 T. R. 189 ; 2 Saund. 
 127, a. n. But where all the items are on one side, the statute is a bar to 
 all demands above six years' standing. Cotes v. Harris, B. N. p. 149. 
 Where there are mutual accounts, but no item of account at all within six 
 years, the plaintiff may reply specially to the plea of the statute, that the 
 accounts are merchants' accounts. 2 Saund. 127, c. n. But it has been held 
 in equity that merchants' accounts are within the st^jtute, if they have 
 ceased six years. Barber v. Barber, 18 Ves. 286. And see Jones v. Pengree, 
 6 Ves. 580 ;" Martin v. Healhcote, 2 Eden, 169. The clause in the statute as 
 to merchants' accounts is not confined to persons actually merchants. Cat- 
 ling v. Skoulding, 6 T. E. 191." Roscoe on Ev. 261. See, also, Cogstvell v. 
 Dolliver, 2 Mass. 217 ; Coster v. Murray, 5 Johns. C. R. 522 ; Kimball v. 
 Brown, 7 Wend. 322 ; Buntin v. Lagow, Vol. 1 of these Rep. 373 ; R. C. 
 1831, p. 401. With the respect to the exception in the statute as to mer- 
 chants^ accounts, see the subject fully discussed, and most of the authorities 
 cited, by Mabshall C. J., in Spring et al. v. The Executors of Gray, 6 Peters, 
 151. 
 
 [*343] *Larkin v. Wilburn, in Error. 
 
 IN an action of replevin by Larkin against Wilburn, 
 the defendant avowed the taking of the goods as a dis- 
 tress for rent, due to him from the plaintiff. To this 
 avowry the plaintiff pleaded non tenidt and riens in arrear. 
 Issues were joined upon these pleas. There was a ver- 
 dict for the defendant on both the issues ; the jury finding 
 the amount of rent 'in arrear, but not the value of the 
 goods distrained. The Court held, that the common-law 
 judgment for a return of the goods to the defendant, and 
 for his costs of suit, might be rendered on this verdict ; 
 but that there could be no judgment in his favor for the 
 arrears of rent (1). 
 
 (1) If the verdict, as in the case in the text, be against the plaintiff, the 
 jury should inquire concerning the sum of the arrears, and the value of the 
 distress; and the dependant will thereupon have judgment for the rent 
 arrear, if the distress amount to the value of it with costs. If the value of 
 the distress be less than the arrears of rent, the judgment is for the value 
 of the distress, with costs. R. C. 1831, pp. 425, 426 : 17 Car. 2 c. 7 ; 3 Selw. 
 N. P. 379. 
 
 (403)
 
 343-344 SUPREME COURT OF INDIAXA. 
 
 Allen v. Clark and Others. 
 
 Allen v. Clark and Others. 
 
 Decedent's Estate — Settlement. — The settlement of an administrator's 
 accounts in the Probate Court is, prima facie, correct ; and a Court of 
 chancery will not interfere with it, except in clear cases of mistake or 
 fraud (a). 
 
 ERROR to the Franklin Circuit Court. 
 
 Blackford, J. — Bill in chancery by the heirs of Clark 
 against Allen, surviving administrator of Clark. The 
 record shows that Clark died in 1816 ; that letters of ad- 
 ministration were granted to Allen, Bell, and H. Clark; 
 and that Allen was the acting and surviving administra- 
 tor. It is shown that Allen, in 1819, made a settlement 
 of his accounts in the Probate Court; that a balance was 
 found in his favor of 318 dollars and 90 cents; and that, 
 in 1820, he received that sum in payment from H. Clark, 
 one of the other administrators. The bill charges mis- 
 takes and frauds in the defendant's accounts, and 
 [*344] prays a ^decree for the amount in liis hands. The 
 answer denies all fraud, and avers the account as 
 settled in the Probate Court to be correct. The Circuit 
 Court tried the cause upon the bill, answer, and exhibits, 
 and rendered a decree in favor of the complainants for 
 745 dollars and 58 cents. 
 
 It is contended by the plaintifi' in error that the Court 
 of chancery has no jurisdiction in this case. In this he 
 is mistaken. The settlement of accounts in the Probate 
 Court is an ex ixnie proceeding, and ought not to preclude 
 all future investigation of the subject. The Probate 
 Court, however, is a Court of record, speciall}' invested 
 by the legislature with jurisdiction in these cases, and its 
 decisions are entitled to great respect. An account set- 
 tled in that Court, whilst the facts are of recent date, is 
 prima fack correct. The Court of chancer}' can only in- 
 terfere in clear cases of mistake or fraud ; and the com- 
 
 (a) Post 377 ; 12 Ind. 381 ; 26 Id. 124 ; 48 Id. 584 ; 51 Id. 96. 
 
 (404)
 
 NOVEMBER TERM, 1830. 344-345 
 
 Markle v. Steele, on Appeal. 
 
 plaiuant must be held to strict proof. In this case, there 
 are a few obvious mistakes, which it is proper to correct ; 
 but we are of opinion that the principal charges in the 
 bill are not sufficiently supported. The result of our in- 
 vestigation of the cause is, that the decree of the Circuit 
 Court should have been in favor of the complainants for 
 the sum of 214 dollars, together with the costs of suit. 
 
 Per Curiam. — The decree, as to the 214 dollars and the 
 costs, is affirmed ; and as to the residue, the decree is re- 
 versed. 
 
 M' Kinney and Caswell, for the plaintiffs 
 
 Morris, for the defendants. 
 
 Markle v. Steele, on Appeal. 
 
 Practice — Money Had and Received. 
 
 STEELE, resident in another state, forwarded to Mar- 
 kle, in Indiana, who was not an attorney at law, a note 
 against Hotchkiss for 200 dollars, to be collected. Markle 
 placed the note in the hands of an attorney at law for 
 collection. The attorney collected the money, and left 
 the country without paying it over to Markle. Held, that 
 Steele could not, under these circumstances, sustain an 
 action for money had and received against Markle. Held^ 
 also, that if Markle could be made liable for the money 
 
 in any form of action, it must be on one founded 
 [*345] on his ^having acted fraudulently or imprudently 
 
 in entrusting the note to the attorney; or on his 
 having failed to use proper means to obtain the money 
 from the attorney after its collection. Vide Beardsley v. 
 Root, 11 Johns. R. 464; Duncan v. Littell, 2 Bibb, 424; 
 Lucket V. Bohannon, 3 Bibb, 378; Duncan v. Skipwith, 2 
 Camp. 68; Nightingal v. Deiisme, 5 Burr. 2589. 
 
 (405)
 
 345-346 SUPREME COURT OF INDIANA. 
 
 Elderkin r. Shultz. 
 
 Elderkin V. Shultz. 
 
 Note — Assignment — Parties. — The assignee of a debt — to obtain cer- 
 tain securities for the same which had been executed by the debtor to 
 the assignor's attorney, and assigned by the attorney to a third person — 
 tiled a bill in chancery against the attorney and his assignee. Held, on 
 demurrer, that the plaintiff's assignor should have been made a party, 
 
 ERROR to the Floyd Circuit Court. 
 
 Scott, J. — Jesse Wilson and Samuel Wilson, in the year 
 1819, executed to one Thomas Hixson an obligation for 
 the payment of 1,193 dollars and 93 cents, payable 120 
 days from date. Thomas Hixson endorsed and delivered 
 over the said note or obligation to Nathan Hixson. In the 
 year 1821, Nathan Hixson delivered the said obligation 
 to Elderkin and Hagen, attorneys at law, for collection. 
 In the year 1824, Elderkin compounded and compromised 
 with Jesse Wilson for the said debt, and took from the 
 said Jesse four several promissory notes, for the sum of 
 366 dollars and 31 cents each, payable in one, two, three, 
 and four years ; which notes were made payable to Elder- 
 kin, and not to Hixson. Jesse Wilson, at the same time, 
 executed to Elderkin a deed of mortgage for a certain tract 
 of land in Floyd county, as a further security for the pay- 
 ment of the said notes. Elderkin assigned and delivered 
 • over the said notes to Caleb Newman, to secure the pay- 
 ment of a sum of money advanced to him by said New- 
 man, and retained the mortgage in his own possession. In 
 ' the year 1826, Nathan Hixson, for a valuable considera- 
 ^ tion, executed to Christian Shultz, the defendant here, an 
 instrument of writing, purporting to be an assignment and 
 transfer, to the said Shultz, of all his right, claim, and in- 
 terest in and to the said debt, describing the nature of the 
 claim and authorizing Shultz to collect it. Shultz called 
 on Elderkin, and made a demand of the notes and 
 [*346] mortgage ; but Elderkin *refnsed to deliver them. 
 Shultz filed his bill in. the Floyd Circuit Court, 
 (406)
 
 NOVEMBER TERM, 1830. 346 
 
 Elderkin v. Shultz. 
 
 setting out the foregoing facts and praying relief. Elder- 
 kin, Hagen, and Newman are made defendants ; but the 
 bill was afterwards dismissed as to Hagen. The bill 
 chareres that Elderkin is insolvent, and that Newman re- 
 ceived the notes with a full knowledge of Hixson's right. 
 Newman appeared and answered the bill. Elderkin de- 
 murred on the ground that Hixson was not made a party. 
 The Court decreed that the defendants, Elderkin and 
 Newman, should, within 90 days, deliver the aforesaid 
 notes and mortgage to the complainant or his attorney, 
 and pay costs, &c. Elderkin has brought this writ of error 
 to be relieved from the operation of that decree. 
 
 It is the constant aim of a Court of equity to prevent 
 litigation, and so to settle the rights of all parties, as to 
 make the performance of their decree perfectly safe to 
 those who are compelled to obey it. Mitf. PI. 144. On 
 this principle it was decided, in a suit brought by the as- 
 signees of a judgment, that they could not succeed, be- 
 cause they had not brought the assignors before the 
 Court. Cathcart v. Leiois, 1 Ves. jun. 4G3. Also, in the 
 case of Knollys v. Alcock, 7 Ves. 563, the Lord Chancellor 
 said, if a question of worth and value is to be agitated^ 
 the Court will not decide upon it, without every one being 
 a party whose rights can be affected by the decision. In 
 this case, Hixson had, by the complainant's own showing, 
 an interest in the matters charged in the bill. Had the 
 defendants been compelled to perform the decree, they 
 might nevertheless have been afterwards called upon to 
 answer the complaint of Hixson, whose rights could not 
 be affected by a decision where he was not a party. See, 
 also, 2 Madd. Ch. 142, 143. The demurrer should have 
 been sustained. 
 
 Per Curiam. — The decree is reversed with costs. Cause 
 remanded, &c. 
 
 Hoirk and JVclson, for the plaintiff. 
 
 Farnham, for the defendant. 
 
 (407)
 
 346-347 SUPREME COURT OF INDIANA. 
 
 Eicks V. Doe, on the Demise of Wright. 
 
 Ricks v. Doe, on the Demise of Wright. 
 
 Conveyance — Notice — Priority of Title. — A subsequent conveyance 
 of real estate, although first recorded, will not prevail against 
 
 [*347] '-a prior one which is not recorded until after the expiration of 
 the time prescribed by law, if the subsequent purchaser had 
 actual notice of the prior conveyance («). 
 
 ERROR to the Perry Circuit Court. 
 
 HoLMAN, J. — Ejectment for a lot of land in the town of 
 Rome. Wright, the plaintiiF's lessor, claimed title to the 
 premises by virtue of a deed of conveyance, executed to 
 him by Crume on the 10th of June, 1829, and acknowU 
 edged and recorded on the same day. After the plaintiff 
 had exhibited his title, the defendant, who claimed as 
 landlord of the premises, offered in evidence a deed exe- 
 cuted to him by the said Crume, for the same lot, on the 
 18th of March, 1822, and acknowledged on the same day, 
 but not recorded until the 20th of August, 1829. He also 
 offered Lamb, the recorder of the county, who had taken 
 the acknowledgment of both deeds, as a witness to prove 
 that the lessor of the plaintiff, before he purchased the 
 lot, had notice of the existence of the defendant's deed. 
 This deed and parol evidence were rejected by the Cir- 
 cuit Court, and the plaintiff obtained a verdict and judg- 
 ment. 
 
 This case turns upon the question whether a subse- 
 quent deed, though first recorded, will hold the legal 
 estate against a prior deed of which the subsequent pur- 
 chaser had notice, when the prior deed was not recorded 
 Avithin twelve months after its execution? The act of 
 assembly of 1818, pointing out the mode of conveying 
 real estate, which was in force when the defendant's 
 <leed was executed, and which, being re-enacted iii 1824, 
 still continues to be the law, declares, that unless a deed 
 is recorded within twelve months after it is executed, it 
 
 {a) See 17 Ind. 542. 
 
 (408) ■
 
 NOVEMBER TERM, 1830. 347-348 
 
 Eicks V. Doe, on the Demise of Wright. 
 
 shall be adjudged fraudulent and void against a subse- 
 quent purchaser for a valuable consideration, unless such 
 deed be recorded before the recording of the deed under 
 which the subsequent purchaser claims. Stat. 1818, p. 
 207; R.C. 1824, p. 333(1). 
 
 Under the registry acts in England, and the regula- 
 tions respecting the recording of deeds in most ot the 
 United States, it never has been questioned but that a 
 subsequent purchaser, with notice of a prior deed though 
 not recorded is chargeable with fraud in a Court of equity, 
 although his deed is regularly recorded. He is consid- 
 ered as a mala fide purchaser, uniting with the ven- 
 dor to defraud the prior vendee; and neither justice nor 
 good conscience will permit him to retain what 
 r*348] he *knew, at the time of his purchase, was the 
 property of another. Wyatt v. BarweU, 19 Ves. 
 435 ; Le Neve v. Le Neve, 3 Atk. 646 ; Gillespie v. Moon, 2 
 Johns. C. R. 585. To give our act of assembly the most 
 rigid construction, and declare that the deed of Ricks 
 was absolutely void as to Wright, notwithstanding his 
 notice of the prior deed, still, if the fact of notice were 
 clearly established, it would vitiate this title, and a Court 
 of chancery would consider him as holding the legal 
 estate in trust for Ricks. This would in fact have been 
 the case if Ricks had held but a title-bond for the lot; 
 and his taking a deed can not render his claim less avail- 
 able in equity. 
 
 There is not, however, the same uniformity of decision 
 as to the right of a Court of law to take cognizance of 
 the fraud. It is a general rule that fraud is cognizable 
 in Courts of law as well as in Courts of equity. The 
 same rules of construing statutes prevail in both ; and 
 each is bound to give such a construction as will carry 
 the evident intention of the legislature into effect. Hence 
 the conclusion is fairly doducible that a Court of law is 
 not bound to give efficacy to a claim founded on a deed 
 evidently vitiated by fraud, whether direct or construct- 
 
 (409)
 
 348-349 SUPREME COURT OF K^DIAXA. 
 
 Elder v. Lasswell and Others. 
 
 ive. The case of Jackson v. Bargott, 10 Johns. R. 457, is 
 directly in point, so far as the principle is concerned, as 
 the act of assembly of New York is the same as ours. 
 And the following language used by Ch. J. Kent in that 
 case is not inapplicable to this, on the supposition that 
 the defendant substantiates the fact of notice: "When 
 the statute says that every deed, not recorded, shall be 
 adjudged fraudulent and void against a subsequent pur- 
 chaser for a valuable consideration, whose deed shall be 
 recorded, it undoubtedly meant a subsequent purchaser 
 in good faith, and who did not purchase with a fraudulent 
 intent. A subsequent purchaser, mala fide, is not within 
 the purview of the act and not intended to be protected; 
 for the statute never meant to give sanction to fraud, or 
 to render a fraudulent act legal." 
 
 We are therefore of opinion that the evidence was im- 
 properly rejected; that the defendant had a right to show 
 that the plaintiff's lessor had notice of his deed before he 
 purchased; that the purchase was fraudulent; and that 
 no estate was derived by it which is available either in 
 
 law or equity. 
 [*349] ^Per Curiam. — The judgment is reversed, and the 
 verdict set aside, with costs. Cause remanded, &c. 
 
 Hall and Dewey, for the plaintiff. 
 
 Battell, for the defendant. 
 
 (1) Accord. K. C. 1831, p. 270. 
 
 Elder v. Lassavell and Others. 
 
 Set-off— Parties.— A debt due by A. and B. to C. can not be set off, either 
 at law or in equity, against a debt due by C. to A. alone (a). 
 
 Same — Practice. — There is no difference, on the subject of set-off, between 
 Courts of law and equity ; the rule is the same in both Courts. 
 
 (a) See 58 Ind. 52; 55 Id. 216; 53 Id. 221 ; 10 Id. 333; 53 Id. 216; 14 
 
 Id. 20. ' . , 
 
 (410)
 
 NOVEMBER TERM, 1830. 349-350 
 
 Elder v. Lasswell and Others. 
 
 ERROR to the Perry Circuit Court. 
 Blackford, J. — Bill in chancery by Elder against Lass- 
 well, Comstock, Chenault, and Burke. The substance of 
 the bill is, that the complainant and one Arnold Elder, 
 since deceased, executed their note to Lasswell for 550 
 bushels of corn ; that in 1826, before this note became 
 due, they obtained from Chenault and Burke, by assign- 
 ment, a sealed note, executed by Lasswell and one Ephraim 
 Comstock for 1,020 dollars and 82 cents due on the 1st 
 of March, 1820 ; that Lasswell refused to permit this note 
 to be set oil" against the one he held for the corn, and has 
 obtained a judgment against the complainant far 88 
 dollars, in a suit at law on the last-mentioned note. The 
 bill further states that both Lasswell and Comstock are 
 insolvent; and that their joint note could not be set oft'by 
 the complainant, in the action at law against him on the 
 note given to Lasswell alone. The prayer of the bill i?, 
 that the judgment at law be enjoined, and the set-ott* al- 
 lowed. A written objection in the following words was 
 filed to the bill, viz : " The defendant, Lasswell, now 
 moves the Court here, that the above cause be dismissed 
 for want of apparent equity ; and that the said defendant 
 be allowed his costs expended in that behalf— Crawford, 
 Sol." The Circuit Court dissolved the injunction and 
 dismissed the bill, with costs and damages. 
 
 The complainant's object is to set off his joint note 
 on Lasswell and Comstock, against Lasswell's 
 [*350] judgment on a note *executedto him alone by the 
 complainant. It is admitted that the set-oft" is not 
 admissible at law ; but it is contended that it may be re- 
 ceived in equity. This distinction, relied on by the com- 
 plainant, between Courts of law and equity, on the subject 
 of set-oft, does not exist. The rule is the same in both 
 Courts. This precise point is settled in the case of Bale 
 and others v. Cooke, 4 Johns. C. R. 11. The bill can not be 
 sustained. 
 
 There is an informality in the manner in which the 
 
 (411)
 
 350 SUPREME COURT OF INDIAJSTA. 
 
 Merriman v. Maple. 
 
 bill was objected to. The objection, however, was in 
 writing and makes a part of the record. It is in substance 
 a demurrer. 
 
 The decree of the Circuit Court against the complain- 
 ant is correct, and fiiust be affirmed. 
 
 Per Curiam. — The decree is affirmed. To be certified, 
 &c. (1). 
 
 Dewey and Hall, for the plaintiff 
 
 Crawford, for the defendants. 
 
 (1) A re-hearing was granted in this cause ; but it was not submitted 
 again to the Court. It was dismissed by agreement of the parties. The 
 set-off was inadmissible. M^ Kinney v. Belloios, May term, 1832. 
 
 Merriman v. Maple. 
 
 Indoksement — Release of Maker. — The assignee of a promissory note 
 assigned before it was due, delayed thirty days after it became due be- 
 fore he sued the maker. Held, that the indorser was not liable in such 
 a case, for the maker's default, unless the indorsee could show that an 
 earlier proceeding was impracticable, or would have been unavail- 
 ing («). 
 
 ERROR to the Carroll Circuit Court. 
 
 Scott, J. — Assumpsit by the assignee of a sealed note 
 against the assignor. Plea, non-assumpsit; issue; and 
 judgment for the plaintift'. Two other pleas were reject- 
 ed on demurrer. We learn from the record, that the note 
 was made by Skinner, payable to Merriman twelve months 
 after date, and assigned by Merriman to Maple before it 
 became due. The note became due on the eighth of 
 August, 1821. On the tenth of September following,- 
 Maple sued out of the office of the Franklin Circuit Court 
 a writ of capias ad respondendum against Skinner, re- 
 turned on the first Monday of October, which writ 
 was returned non est inrcntus. On the sixth of Octo- 
 
 («) 40 Ind. 461 ; 53 /(/. 288. 
 
 (412)
 
 NOVEMBER TERM, 1830. 351 
 
 Hagaman v. Stafford. 
 
 [*351] ber, an alias capias ^issued returnable on the first 
 Monday of March, 1822, which was returned exe- 
 cuted, and judgment was rendered at the term for the 
 plaintiff. Several executions were issued on the judgment 
 and returned nulla bona. Maple, the assignee, then 
 brought this suit and obtained judgment. 
 
 The complaint is, that due diligence was not used by 
 Maple to obtain the money from Skinner. The liability 
 of the assignor depends on the fact that the assignee, 
 after having used due diligence, has failed to obtain the 
 money of the maker of the note. Had the assignee, not- 
 withstanding the delay, succeeded in bringing Skinner 
 into Court at the first term after the note became due, the 
 assignor would have had no ground of complaint; but as 
 the assignor had parted with the note, and had no more 
 control over it, he had a right to require evidence that 
 the assignee had commenced suit in due time, and had 
 used all the means in his power to obtain judgment at 
 the first term; or that he should show some reason why 
 an earlier proceeding was impracticable, or if practicable, 
 that it would have been unavailing. A delay of upwards 
 of thirty days, without any reason to justify or excuse it, 
 is not, in our opinion, consistent with that due diligence 
 which the law requires in such cases. If a man choose 
 to sleep on his rights, he must do so at his own risk and 
 not at the hazard of his neighbor, 
 
 Pe7' Curiam. — The judgment is reversed with costs. 
 
 Wiek, for the plaintifi'. 
 
 Fletcher and 31errill, for the defendant. 
 
 Hagaman v. Stafford. 
 
 Evidence — Authenticity of Affidavit. — A paper, purporting to be an 
 affidavit made before a justice of the peace in another county, was offer- 
 ed in evidence. Held, that there must be proof of its authenticity, in 
 
 (413)
 
 351-352 SUPREME COURT OF INDIANA. 
 
 Hagaman v. Stafford . 
 
 order to authorize its admission ; but that it might be proved by parol 
 evidence (o). 
 
 ERROR to the Owen Circuit Court. 
 
 HoLMAN, J. — Action on the case by a father for the se- 
 duction of his daughter, whereby he lost her service. 
 Plea, not guilty. On the trial the daughter was intro- 
 duced as a witness on behalf of the plaintiff, and 
 ["^^352] stated in her evidence that the *child she had 
 borne was begotten by the defendant at her fatlier's 
 in Greene county. In order to discredit her testimony, 
 the defendant offered in evidence a paper, purporting to 
 be an affidavit made by the witness before a justice of the 
 peace of Greene county in a case of bastardy, in w^liich it 
 is said that she then swore that the defendant was the 
 father of the child, and that it was conceived at Peter 
 Hagaman's in Greene county. The plaintiff objected to 
 the reading of this affidavit, because it was not authenti- 
 cated by the certificate and seal of the clerk; but the Cir- 
 cuit Court, on receiving proof that the man before whom 
 the oath appeared to be sworn, was, at the time of mak- 
 ing the affidavit, an acting justice of the peace of Greene 
 county, permitted it to be read in evidence without any 
 proof, says a bill of exceptions, of the handwriting of the 
 justice, or that he ever made the certificate. The defend- 
 ant obtained a verdict. The plaintiff moved for a new 
 trial. The Circuit Court overruled the motion, and gave 
 judgment for the defendant. 
 
 The affidavit should not have been read without proof 
 of its authenticity. It purports to be a part of a legal 
 proceeding, before the justice of the peace, between the 
 state and the present defendant; and being detached from 
 the case is not entitled to the same credit as if the whole 
 proceedings had been certified. Again, it purports to be 
 the original affidavit, being nowhere spoken of in the 
 record as a copy; and, being a document that should not 
 
 (a) 5Blkf. 390; 49 Ind. 341. 
 
 (414)
 
 NOVEMBER TERM, 1830. 352-353 
 
 Moore, Administrator, i-. Martindale, Administrator. 
 
 be thus removed from the office of the justice, its exhib- 
 ition in this case for a purpose entirely foreign to that for 
 which it was originally intended, and in a county difier- 
 ent from that in which the justice resided, is calculated 
 to excite suspicion. The party introducing it should, 
 therefore, be held to the strictest proof of its authenticity ; 
 which, however, may be furnished by oral testimony. 
 
 Per Curiam. — The judgment is reversed, and the ver- 
 dict set aside with costs. Cause remanded, &c. (1). 
 
 JVaylor, for the plaintiff. 
 
 Merrill, for the defendant. 
 
 (1) A re-hearing was granted in this case ; but the same judgment in it. 
 as above, was afterwards rendered. 
 
 [*353] *MooRE, Administrator, v. Martindale, Adminis- 
 trator. 
 
 Practice — Default — Administratok. — If an administrator suffer judg- 
 ment by default, he can not afterwards, by the common law, in an action 
 against him suggesting a devastavit, plead plene administravit. 
 
 The statute of 1822, authorizing, under those circumstances, the plea of 
 plene administravit, does not affect cases in which the judgment by de- 
 fault was suffered previously to the statute (a). 
 
 ERROR to the Wayne Circuit Court. 
 
 HoLMAN, J. — Declaration in debt, setting forth that on 
 the 16th of July, 1821, Mordecai Mendenhall, recovered 
 a judgment against William Young and Moses Martin- 
 dale, administrators of the estate of Jesse Young, de- 
 ceased, by default, for want of a plea ; to be levied of the 
 goods and chattels, lands and tenements of the deceased, 
 in their hands to be administered; that Mendenhall died, 
 and that administration of his estate was 2:ranted to the 
 plaintiff; that he had the judgment revived in his own 
 name as administrator, at the August term of the Circuit 
 
 (a) 3 Blkf. 275. 
 
 (415)
 
 353-354 SUPREME COURT OF INDIANA. 
 
 Moore, Administrator, v. Martindale, Administrator. 
 
 Court, 1829, and execution awarded ; that an execution 
 issued and was returned nulla bona. He avers that, at 
 the time the judgment was obtained, and at the time it 
 was revived and execution awarded, there were assets in 
 the hands of the defendants to the value of the judgment, 
 which were afterwards wasted by the defendants. Young 
 was not found. Martindale appeared and pleaded, that 
 at the time he had notice of the debt, to wit, on the 10th 
 of January, 1821, he had fully administered all the assets 
 that came into his hands; and that he has received noth- 
 ing sincCc Wherefore, he says he is not guilty of the 
 waste charged in the declaration. To this plea the plain- 
 tiff demurred specially. The Circuit Court overruled the 
 demurrer and gave judgment for the defendant. 
 
 It is admitted that if Mendenhall had followed up his 
 judgment by execution, and had not found assets to sat- 
 isfy it^ he would have had, as the law then stood, a right 
 of action against the defendant, on the suggestion of a 
 devastavit; and that the defendant could not have been 
 heard in any plea denying what, in legal intendment, 
 was admitted by default, viz. that he had assets to dis- 
 charge the judgment. The facts pleaded in the present 
 
 action would not, under any form, have consti- 
 [*354] tuted *a defence. But it is contended, that by 
 
 the act of assembly, approved January the 2d, 
 1822, the law has been changed so as to remove the de- 
 fendant's liability so far as to permit him to show he had 
 no assets. This act provides that no mispleading, or lack 
 of pleading, shall hereafter render any executor or admin- 
 istrator liable to pay any debt of the deceased, damages 
 or costs, beyond the actual amount of assets, which shall 
 or may come into his hands. Stat. 1822, p. 141. With- 
 out inquiring into the competency of the legislature to 
 pass an act impairing the rights of Mendenhall or his 
 representative, or diminishing the liability of the defend- 
 ant, we are of opinion that they have not attempted to 
 interfere in the case, but have left it just where it was. 
 
 (41G)
 
 NOVEMBER TERM, 1830. 354-355 
 
 Doe, on the Demise of Knapp aud Wife v. Patterson and Others, in Error. 
 
 The act of assembly is prospective as to the mispleading 
 or lack of pleading, as well as to the administrator's dis- 
 charge from liability. By a fair construction it says that 
 nothing that takes place hereafter, as to mispleading or 
 lack of pleading, shall render the administrator liable be- 
 yond the assets; and says nothing about previous mis- 
 pleading or lack of pleading, but leaves them with their 
 consequences, under the operation of the law that pre- 
 vailed at the time they took place. The law on this sub- 
 ject that was in force when the original judgment was 
 entered, though its policy has been often questioned, has 
 been too long and too well settled to admit of contro- 
 versy. The judgment by default so fixed on the admin- 
 istrator the presumption of assets, to the amount of the 
 judgment, that, in a subsequent action for a devastavit, 
 he is estopped from denying that fact. This is the law 
 that governs the case : of course the defendant's plea was 
 inadmissible, and the demurrer should have been sus- 
 tained. 
 
 Pel' Curiam. — The judgment is reversed with costs (1). 
 
 Smith, for the plaintifi". 
 
 ■Rariden, for the defendant. 
 
 (1) A re-hearing was granted in this case ; but the same judgment in it. 
 as above, was afterwards rendered. Vide R. C. 1831, p. 169. Martindale v. 
 Moore, Nov. term, 1833. 
 
 [*355] *DoE, on the Demise of Knapp and Wife, v. Pat- 
 
 TisoN and Others, in Error. 
 
 HELD, that, by the statute .law of this state, a will, de- 
 vising real estate must be in writing, signed by the tes- 
 tator, and attested by two credible witnesses in presence 
 of the testator; and that it may in the same manner be 
 revoked. Held, also, that a will in such a case, as well as 
 a revocation, is valid without being sealed (1). 
 Vol. II.— 27 (417)
 
 S55-356 SUPREME COURT OF INDIANA. 
 
 Eawley v. The Board of Commissioners of Vigo County, 
 
 (1) A re-hearing was granted in this case; but the same judgment in it, 
 as above, was afterwards rendered. The statute is now as follows : — "All 
 devises and bequests of any lands or tenements, devisable by force of this 
 act or any other law of this state, shall be in writing, and signed by the 
 party so devising the same, or by some other person in his presence and by 
 his express directions, and shall be attested and subscribed, in the presence 
 of the said devisor, by two or more competent witnesses, or else they shall 
 be utterly void and of no effect." R. C. 1831, p. 272. Such devises can 
 only be revoked by the burning, cancelling, tearing, or obliterating of the 
 same by the testator himself, or in his presence and by his direction and 
 consent ; or by some other will or codicil in writing, or other writing of the 
 devisor, signed in the presence of two or more competant witnesses declar- 
 ing the same. lb. The subsequent birth of a child, if there be no provis- 
 ion in the will for such a contingency, operates as a revocation of the will, 
 lb. p, 274. 
 
 Rawley V. The Board of Commissioners of Vigo County. 
 
 Fees — Criminal Actions. — Neither the state, nor a county, is bound by 
 law to pay the fees and charges of the officers, in cases of prosecutions on 
 behalf of the state, in which the prosecution fails (a). 
 
 ERROR to the Vigo Circuit Court. 
 
 Blackford, J. — The following statements of facts in 
 this cause was submitted to the Court: ^^Alpheus Rawley 
 V. The Board of Commissioners of the County of Vigo. Ac- 
 tion of assumpsit. Damages, 55 dollars. The following 
 is a statement of an agreed case for the decision of the 
 Vigo Circuit Court, Indiana, between Alpheus Rawley, 
 constable for Otter creek township, in said county, and 
 the board of commissioners of said county. Rawley has 
 
 performed services as constable, in state cases de- 
 [*356] cided against the county, to the amount of 55 *dol- 
 
 lars, for which he claims an allowance from the 
 said board of county commissioners; a part of which 
 claim is embraced in his account filed, and which is to be 
 made a part of the record. The only question submitted 
 is, whether the county is liable to pay for such services. 
 — A. Kinney, for plaintiff. — J. Farrington, for defendant." 
 
 (a) 21 Ind. 32. 
 
 (418)
 
 KOVEMBER TERM, 18b0. 356 
 
 Kipper and Others v. Glancey and Another, 
 
 —The Circuit Court, in this case, decided in favor of the 
 defendant. 
 
 We have no doubt in this case. Neither the state, nor 
 a county, is bound by law to pay the fees and charges of 
 the officers, in cases of prosecutions on behalf of the state, 
 in which the prosecution fails. There have been frequent 
 cases of the kind in this Court; and we have uniformly 
 refused to give costs against the state. It is settled in the 
 Supreme Court of the United States that the United States 
 never pay costs in any suit. United States v. Barker, 2 
 Wheat. 395. In the present case, the county can not be 
 liable for the fees and charges stated, without an express 
 statute on the subject. It is admitted that there is no 
 such statute. The judgment must be affirmed. 
 
 Per a^rmm.— The judgment is affirmed with costs. 
 
 Kinney, for the plaintiff. 
 Farrington, for the defendant. 
 
 Kipper and Others v. Glancey and Another. 
 
 Equity— Remedy of Creditors.— If a person, indebted to several others, 
 absent himself from the state, and leave real estate to which he is entitled 
 in equity, but no property subject to legal process, the creditors may unite 
 in a bill in chancery to have their claims liquidated, and to make the 
 property liable for the amount (a). 
 
 Same— Practice.— The Court, on overruling a demurrer to a bill in chan- 
 cery, should give the defendant a reasonable time to make and file his 
 answer. 
 
 ERROR to the Shelby Circuit Court. 
 
 Blackford, J.— This was a bill in chancery, filed by 
 Joseph Glancey and John Kinsley, in the Shelby Circuit 
 Court, against James P. Kipper, John Kipper, Samuel 
 Kipper, and Kathan Bulkley. Each of the complainants 
 set forth his separate demand, founded on contract, 
 
 (a) See48Ind. 75; 7 Id. 622. 
 
 ' (419)
 
 356-357 SUPREME COURT OF INDIANA. 
 
 Kipper and Others v. Glancey and Another. 
 
 against James P. Kipper. The bill charges that, in 1828, 
 after the debts were contracted, James P. Kipper privately 
 removed, with his personal property, to some 
 [*3o7] place *out of the state unknown to the complain- 
 ants. It states that, in 1824, this defendant paid 
 100 dollars for a tract of land in Shelby county, took the 
 title in the name of one Stilwell, without his knowledge, 
 and, in 1826, caused Stilwell to convey the land, without 
 consideration, to Samuel Kipper. The bill further charges, 
 that James P. Kipper purchased alot^in Shelby ville, made 
 valuable improvements thereon, and afterwards, in 1825, 
 caused the vendor to convey the same to John Kipper 
 without the latter's knowledge. It charges, also, that 
 James P. Kipper, in 1826, paid 100 dollars for a tract of 
 land in the said county, and took the title in the name of 
 John Kipper without his knowledge. The bill alleges, 
 that James P. Kipper has the beneficial interest in this 
 real estate, and that, to defraud his creditors, he caused 
 the legal title to the property to be vested in Samuel and 
 John Kipper, who ai'e his trustees. The defendant, Bulk- 
 ley, is charged to be the agent of James P. Kipper, and to 
 have money in his hands payable to his principal, arising 
 from the rents and profits of the trust-property. Fraud is 
 charged against all the defendants. The bill prays that 
 the real estate described be sold to satisfy the complain- 
 ants; or that Bulkley be decreed to pay the debts out of 
 the funds in his hands. This bill was demurred to. The 
 Circuit Court overruled the demurrer, and gave the de- 
 fendants leave to answer further, provided it was done 
 instanter. The defendants applied for time to make and file 
 their answer; but the Court refused to give them any 
 time whatever to do so, withoutthe complainants' consent. 
 The defendants not answering instanter, the bill was taken 
 pro confesso, and a final decree rendered for the complain- 
 ants. 
 
 The objection made to this bill is, that the complain- 
 ants are not judgment-creditors. It is the general doctrine, 
 
 (420)
 
 NOVEMBER TERM, 1830. 357-358 
 
 Kipper and Others v. Glancey and Another. 
 
 certainly, that to reach the equitable interest of the 
 debtor in real estate, by a suit in chancery, the creditor 
 should first obtain a judgment at law; and to obtain as- 
 sistance in equity as to personal property, both a judg- 
 ment and an execution must be shown. Brinkerhoff v. 
 Broirn, 4 Johns. Ch. R. 671. One exception to this rule 
 is, where the debtor is deceased. Thompson et at. v. 
 Brown et al, 4 Johns. Ch. R. 619. Of this class, was the 
 case of Sweeney et al. v. Ferguson, May term, 1828, cited 
 by the defendants in error (1). Another exception to the 
 
 rule is, where the debtor has absented himself 
 [*358] *from the state. This is so decided in the case of 
 
 Scott V. 3I'MUlen, 1 Litt. 302. In this latter case, 
 it is true, there was only one complainant. It seems to 
 us, however, that the practice should not be confined to 
 the proceeding by a single creditor ; but that several may 
 unite in the same bill, under the circumstances of the 
 present case. This is permitted where judgments are 
 previously obtained ; Brinkerhoff et al. v. Brown et al., 6 
 Johns. Ch. R. 139; or where the debtor is deceased. 
 Thompson et al. v. Brown et al., 4 Johns. Ch. R. 619. 
 Where the debtor has absconded, the practice should be 
 the same as in the cases to which we have referred. By 
 absconding from the state, the debtor prevents the pro- 
 ceeding against him at law, and his creditors should be 
 permitted to apply to a Court of chancery, as where 
 judgments have been previously obtained, or the debtor 
 is deceased. If the absconding debtor leaves property 
 subject to legal process, the creditors may have their de- 
 mands liquidated, and may procure their respective shares 
 of the proceeds of the property, by means of an attach- 
 ment. So, in our opinion, where the property left, and to 
 be made liable, is equitable only, the creditors may unite 
 in a bill in chancery to liquidate their claims, and to effect 
 their common object of establishing the liability of the 
 property. The objection to the bill, therefore, is insuffi- 
 cient, and the demurrer was correctly overruled. 
 
 (421)
 
 358-359 SUPREME COURT OF INDIANA. 
 
 Roberts v. Lefavour, in Error. 
 
 The Circuit Court, however, committed an error in re- 
 fusing to give the defendants in that Court any time 
 whatever to make and tile their answer, after overruling 
 the demurrer. A reasonable time should have been given 
 for that purpose. 
 
 Per Curiam. — The decree is reversed with costs. Cause 
 remanded, &c. 
 
 Stevens, for the plaintiffs. 
 
 Fletcher and Merrill, for the defendants. 
 
 (1) Ante, p. 129. 
 
 Roberts v. Lefavour, in Error. 
 
 LEFAVOUR brought an action against Roberts, be- 
 fore a justice of the peace, for 77 dollars, and ob- 
 [*359] tained a judgment for *5 dollars and his costs. 
 Lefavour appealed to the Circuit Court, and ob- 
 tained a judgment for the same amount with costs. Held, 
 that under the statute of 1827, the judgment in the Cir- 
 cuit Court for costs was not erroneous. 
 
 The costs on the appeal are taxed, under the statute of 
 1827, in such a manner as the Court thinks proper (1). 
 
 (1) Vide R. C. 1831, p. 318. 
 
 Glidewell and Another v. M'Gaughey. 
 
 Pkactice — Demukkek. — On overruling a demurrer to a declaration, in an 
 action on a penal bond conditioned for the performance of covenants, in" 
 which declaration the breaches are assigned, the order of the Court is, 
 that the plaintiff ought to recover his said debt and his damageson oc- 
 casion of the detention thereof; but that judgment should not be given 
 until the truth of the breaches assigned is inquired into, and the dam- 
 ages are assessed (a). 
 
 (a) Post 457; 4 Blkf. 42; 6 Tnd. 387. 
 
 (422)
 
 NOVEMBER TERM, 1830. 359-360 
 
 Glidewell and Another r. M'Gaughey. 
 
 Same. — After this, if the Court, by agreement of the parties, have inquired 
 into the damages, the opinion is given and entered, that the phiintifF has 
 sustained damages, by reason of the breaches assigned, to the amount 
 of . 
 
 Same.— The next and last steps to be taken are, the rendition of the final 
 judgment for the debt in the declaration mentioned with costs ; and the 
 award of execution for the damages assessed with costs (b). 
 
 Same — Capias Respondendum — Joint Defendant.— If a capias ad re- 
 spondendum be issued against two, and be executed on one only, the 
 suit abates as to the other on whom the writ was not served ; and no 
 judgment can be rendered against him (c). 
 
 Costs — Bond for — Action on. — A declaration on a bond for security for 
 costs, stating that the plaintiff sues for himself and others, officers of the 
 Court, is bad. Any person interested may sue for himself on the bond, 
 and obtain a judgment for the penalty; and, afterwards, any other 
 person interested may, upon that judgment, have a scire facias. No 
 one, however, has a right to sue for himself and others, officers, dr. 
 
 Same — Pleading. — It is not sufBcient, in an action on such a bond, to state 
 that the defendant has not paid the costs, without setting out the amount 
 of the costs incurred. 
 
 ERROR to the Putnam Circwit Court. 
 
 Blackford, J. — This was an action of debt by M'Gaugh- 
 ey, clerk of the Putnam Circuit Court, against Saunders 
 and Glidewell. The declaration commences as follows : 
 Arthur M'Gaughey, clerk of the Putnam Circuit Court, 
 complains for himself and others, oiticers of said Court, 
 who may be interested herein, of Henry Saunders and 
 Robert Glidewell, in custody, &c., of a plea that they ren- 
 der unto the said M'Gaughey, clerk as aforesaid, and 
 
 others, officers of said Court, who may be inter- 
 P360] ested ^herein, the sum of 300 dollars, &c. The 
 
 cause of action, as shown in the declaration, is a 
 bond in the penalty of 300 dollars ; the condition of which 
 is set out substantially as follows : Whereas Saunders has 
 instituted a suit in the Putnam Circuit Court against 
 Boyd, now if the obligors or either of them pay the costs 
 which may accrue in the case, then the bond to be void. 
 The breach assigned is, that though the suit is determined, 
 
 (b) 3 Blkf. 499. (c) 7 Ind. 540. 
 
 (423)
 
 360-361 SUPREME COURT OF INDIANA. 
 
 Glidewell and Another v. M'Gaughey. 
 
 the obligors have not, nor has either of them, paid the 
 costs, but have always refused to pay, &c. The writ was 
 executed on Glidewell, and returned as to Saunders, " not 
 foun.d." The record states that afterwards the parties 
 came by their counsel, and the defendant tiled his demur- 
 rer and the plaintiif his joinder. The demurrer is signed 
 — Robert Glidewell, defendant. Among other causes, of 
 demurrer, the following are assigned: 1st, that the suit is 
 commenced in the name of M'Ganghey and others, with- 
 out naming those others; 2d, the amount of costs ought 
 to be exhibited in the declaration. The Court overruled 
 the demurrer, and gave judgment for the debt in the dec- 
 laration mentioned. But as the amount due was unliqui- 
 dated, the parties agreed that the same should be ascer- 
 tained by the Court. Judgment was afterwards rendered 
 by the Court in favor of M'Gaughey, against Saunders 
 and Glidewell, for 26 dollars and 29 cents in debt, together 
 with costs. 
 
 The proceedings in this case are very irregular. Sup- 
 posing the demurrer to be correctly overruled, the judg- 
 ment for the debt named in the declaration, viz., the pen- 
 alty, should not have been rendered at the time it was. 
 On overruling the demurrer, the order of the Court should 
 have been, that the plaintiff ought to recover his said debt 
 and his damages on occasion of the detention thereof; 
 but that judgment should not be given until the truth of 
 the breaches assigned are inquired into and the damages 
 assessed. After this, it would have been proper to enter 
 the agreement of the parties referring the assessment to 
 the Court. When the Court had made the necessary in- 
 quiry, their opinion should have been given and entered 
 — that the plaintiff had sustained damages, by reason of 
 the breaches assigned, to the amount of 26 dollars and 29 
 cents. The next and last step to be taken was, the rendi- 
 tion of the final judgment for the debt in the declaration 
 mentioned, with costs; and the award of execution 
 [*361] for the damages assessed with costs. 1 ''^Saund. 
 
 (424)
 
 NOVEMBER TERM, 1830. 361 
 
 Glldewell and Another v. M'Gaughey. 
 
 58; 3 Chitt. PL 280, 287; Clark v. G^oo^^^n, July term, 
 1820 (1). If the irregularities just adverted to did 
 not exist, the final judgment in this case, against both the 
 defendants, would still be erroneous. The writ was re- 
 turned as to Saunders, "not found." The record states, 
 that afterwards the parties came by counsel, and the de- 
 fendant filed his demurrer. The demurrer is signed by 
 Glidewell alone. The fair inference is, that the pa: ties 
 who appeared were the plaintifi" on one side, and the de- 
 fendant Glidewell on the other. The suit must therefore 
 be considered, by the return of the writ, abated as to 
 Saunders; and no judgment could be rendered against 
 him. 
 
 Independently, however, of the errors in the record 
 subsequent to the overruling of the demurrer, the Court 
 erred in their decision on the demurrer. The words, 
 " for himself and others, ofiicers, &c.," should not have 
 been inserted in the declaration. The bond was given 
 under the statute of 1824, as a security for costs. Any 
 person entitled to recover on it had a right by the statute 
 to put it in suit. The judgment for the penalty would 
 stand as a security; and any other person entitled might 
 sue out a scire facias on it. Xo one, however, had a right 
 to claim both for himself and " others, officers," &c. The 
 breach assigned in the declaration is defective. It was 
 not sufiicient to aver generally that the defendant had 
 not paid the costs; but the amount of the costs for which 
 the obligors were liable to the plaintitt', should have been 
 shown. Lawes on Assumpsit, 230. These defects in the 
 dechiration are fatal. 
 
 Per Curiam. — The judgment is reversed, &c., with costs. 
 Cause remanded, &c. 
 
 Wick, for the plaintifts. 
 
 Whitcornb, for the defendant. 
 
 (1) Vol. 1 of these Eep. 74. 
 
 (425)
 
 361-362 SUPREME COURT OF mDIANA. 
 
 M'Clelland v. Hubbard. 
 
 M'Clelland v. Hubbard. 
 
 Execution — Notes — Trust. — A. deposited with B. a note for the payment 
 of money against C, to be accounted for by B. to A. when collected. 
 [*362] B. afterwards gave up this note to the sheriff to be *sold on a fee- 
 bill against A., B. and D., in a case in which A. was the principal 
 and B. and D. were his sureties. The sheriff, accordingly, levied upon 
 and sold the note to satisfy the fee-bill. Held, that B., for this breach of 
 duty, was liable to A. in action on the case. 
 Held, also, that a note for the payment of money is not liable to execu- 
 tion (a). 
 
 ERROR to the Tippecanoe Circuit Court. 
 
 Blackford, J. — Trespass on the case by Hubbard against 
 M'Clelland. The declaration contains two counts in tro- 
 ver for certain writings obligatory and promissory notes. 
 There is also a count in case against the defendant as a 
 bailee, for a breach of duty relative to certain instruments 
 of writing. The defendant pleaded not guilty. The evi- 
 dence in the cause was as follows: The plaintifi' depos- 
 ited with the defendant a note, and took from him the 
 following receipt: "Received of Noah Hubbard one 
 note on James Suit, calling for 80 dollars, for v\4iich I 
 will account to the said Hubbard, when collected. Juno 
 20th, 1S2S.— John M'Clelland, (seal)." The plaintiff mad.' 
 a demand on the defendant for this note before the com- 
 mencement of the suit. The clerk of the Circuit Court 
 issued a fee-bill against the plaintift" and his sureties, on 
 an appeal-bond, for costs, in the case of William Digby, 
 appellee, v. Noah Hubbard, appellant, and Reuben Kelsey 
 and John M'Clelland, his sureties. The sheriff, by virtue 
 of the fee-bill, demanded property of the defendant, 
 M'Clelland, one of the sureties in the appeal-bond. It 
 was proposed to the defendant to give up the note men- 
 tioned in the receipt, which he refused, but asked of the 
 sheriff time to consult on the subject. On the same day, 
 the defendant handed over the note to the sheriff to be 
 
 (a) 4 Ind. 321. 
 
 (426) •
 
 NOVEMBER TERM, 1830. 362-363 
 
 M'Clelland v. Hubbard. 
 
 executed and sold on the fee-bill. Afterwards, and be- 
 fore the sale, the defendant gave notice to the plaintiff of 
 these facts. A few days before the sale of the note, the 
 phiintiff called on the defendant, and expressed a wish 
 that the fee-bill might be paid off. He said that he pre- 
 ferred that Digby, the plaintiff in the fee-bill, should be 
 made liable, and that he did not wish the defendant to 
 suffer. He said also that the fee-bill was illegal, and that 
 he would take some of the parties into chancery. There 
 was proof of some other conversation of the plaintiff as 
 to his request to Cox to pay oft" the fee-bill, rather than 
 to have any more trouble. The note was sold at sherift^'s 
 sale to Kelsey, the highest bidder, for 14 dollars and 50 
 cents, and the money was paid by the sheriff" into 
 [*363] the clerk's office. *The case upon this evidence 
 was submitted to the Circuit Court. The judg- 
 ment is in favor of the plaintiff" in that Court for the sum 
 of 80 dollars in damages, together with costs. A motion 
 was made for a new trial by the defendant below, which 
 motion the Court overruled. 
 
 It is unnecessary to examine whether, in this case, 
 there was such a conversion of the note to the defendant's 
 use, as would subject him to an action of trover. The 
 case is clear on the count charging the defendant as a 
 bailee. The note was not liable to execution. Bingham 
 on Judgments, 111 (1), The note was deposited by the 
 plaintiff' with the defendant for collection. The latter in 
 giving it up to the sheriff committed a breach of his 
 duty; and -he is liable to an action on the case for his 
 misconduct. 
 
 The motion for a new trial was correctly overruled. 
 The judgment must be afffrmed. 
 
 Per Curiam. — The judgment is affirmed, with 1 per cent. 
 damages and costs, 
 
 Fletcher and Merrill, for the plaintiff". 
 
 White, for the defendant. 
 
 (427)
 
 363-364 SUPREME COURT OF mDIANA. 
 
 Bowles i . Newhv. 
 
 (1) By the writ of fieri facias, authority is given for the seizure and sale 
 of every thing that is a chattel, belonging to the defendant, except his 
 necessary wearing apparel. Even of two gowns one may be taken. Leases 
 for terms for years, corn growing, and such "fructus industriales " as would 
 go to the executor, fixtures which were erected and may be removed by the 
 tenant, an annuity granted by the king for years, money in defendant's 
 possession, are liable to execution under this writ; but not apples on trees, 
 those fixtures, furnaces, &c. which belong to the heir, and may not be re- 
 moved by the tenant, bank notes, money in the sheriff's hands, being the 
 surplus of money levied under a former execution against the defendant's 
 goods, at the suit of the same plaintiff, or damages recovered by the de- 
 fendant against the sheriff in another action, or money levied under an 
 execution at the suifc of the defendant ; nor goods pawned, demised for 
 years, distrained, or taken and in custody of the sherift', upon a former ex- 
 ecution ; nor things which can not be sold, as deeds, writings, &c. But 
 goods pawned may be taken upon satisfaction of the pledge, and goods de- 
 mised subject to the right of the lessee. Bingh. on Judg. cited in the text. 
 
 The above is the English law. For our statute on the subject, vide R. C. 
 1831, p. 234. 
 
 [*364] *BowLES V, Newby. 
 
 Consideration — Failure of — Pleading. — Assumpsit by the assignee of 
 a promissory note, payable on the 30th of October, 1829, against the 
 maker. Plea, that the payee and another, on the day the note was given, 
 executed to the maker their obligation for the delivery of a certain 
 quantity of bricks on the 1st of May, 1829; that the note was given in 
 consideration of the delivery of the bricks; that the bricks had not been 
 delivered, and the consideration of the note had therefore failed. Held, 
 on demurrer, that the plea was a good bar to the action («). 
 
 APPEAL from the Orange Circuit Court. 
 
 Scott, J. — Edmund Newby, assignee of Joseph Potts, 
 brought an action of assumpsit in the Orange Circuit 
 Court, against William A. Bowles, on a promissory note 
 for 210 dollars, dated October the 30th, 1828, and pay- 
 able twelve months after date. The defendant craved 
 oyer, and jDleaded that Joseph Potts, to whom the said 
 note was made payable, and one John Parvin, on the 
 30th of October, 1828, executed to him an obligation for 
 the delivery of 70.000 bricks at said John Parvin's brick 
 kiln in Paoli, on or before the first of May, 1829; that in 
 
 (a) 8 Blkf. 368 ; see 35 Ind. 527 ; 52 Id. 331 ; U Id. 177 ; 51 Id. 305 ; 49 
 Id. 146 ; 30 Id. 39. 
 
 (428)
 
 NOVEMBER TERM, 1830. 364-365 
 
 Bowles V. Newby. 
 
 consideration of the delivery of the said bricks he gave 
 the said note, &c., and avers tliat the bricks were not de- 
 livered. By reason whereof he says the consideration of 
 the said promissory note has wholly and entirely failed. 
 To this plea there was a demurrer, and judgment for the 
 plaintiff; from which the defendant has appealed. 
 
 It is alleged in support of the judgment of the Circuit 
 Court that the true consideration of the note for the 
 money was not the actual deliver}' of the bricks, but the 
 undertaking to deliver them. We are told that this is 
 the true construction of the plea; and the Circuit Court 
 so understood it; and from this construction of the plea, 
 the conclusion is, that a failure to deliver the bricks was 
 not a failure of the consideration of the note for the 
 money. This construction of the plea being admitted, 
 we think the conclusion does not follow. The bargain 
 of every man ought to be performed as he understood it. 
 Ld. Raym. 666; 2 Saund, 352, n. The time fixed for per- 
 formance is a part of the contract. 1 Pet. Rep. 465. 
 The time for the delivery of the bricks, in this case, being 
 prior to the time for the payment of the money, 
 [*365] shows clearly that it *was the understanding of 
 both parties, that the delivery of the bricks should 
 precede the payment of the purchase-money: and no per- 
 son can compel another to perform his part of the con- 
 tract until he himself has performed what he stipulated 
 to do, as the consideration of the other's promise. 2 
 Saund. 352, n. This doctrine is established by a long 
 train of decisions, and can not now be controverted. 
 See 1 Salk. 112, 171; Dougl. 684; 4 T. R. 761; 8 T. R. 
 366. Most of these decisions are on contracts, where the 
 mutual promises are contained in the same instrument; 
 but we think they go clearly to establish the principle 
 tliat where a promise is the consideration, a failure to 
 perform that promise is a failure of consideration. This 
 principle is fully considered and ably elucidated in the 
 decision of the case of the Bank of Columbia v. Hagver, 1 
 
 (429)
 
 365-366 SUPREME COURT OF IXDIAXA. 
 
 Pugh V. Bussel. 
 
 I'et. Rep. 455, above referred to. In that case it is said 
 that if the seller is not ready and able to perform his part 
 of the agreement on the day fixed for its performance, 
 the purchaser may elect to consider the contract at an 
 end. Had the note, in the case before us, expressed on 
 its face the consideration set out in the plea, the plaintiii" 
 must have averred in his declaration, and proved on the 
 trial, a delivery of the bricks, or a readiness to deliver 
 them, in order to show a right of action. But, as the 
 consideration does not appear on the face of the note, it 
 may be shown by special plea under the statute, which 
 authorizes the defendant to allege a want or failure of 
 consideration. R. C. 1824, p. 295 (1). The note being 
 in the hands of an assignee makes no difference; the 
 statute making notes negotiable gives the same defence 
 against the assignee as against the original payee of the 
 note. 
 
 We have been requested to revise the case of Pence et 
 al. V. Smock, decided at our last May term (2). We have 
 carefully examined that case, and also the case of Leonard 
 v. Bates, 1 Blackf. Rep. 172, and are fully satisfied of their 
 correctness. These, and the decisions above cited, all rest 
 upon the principle that the failure of one party gives to 
 the other an election to consider the contract rescinded. 
 The judgment must be reversed. 
 
 Per Curiam. — The judgment is reversed with costs. 
 Cause remanded, &c. 
 
 Howk, for the appellant. 
 
 Dewey, for the appellee. 
 
 [*366] »(1) Accord. R. C. 1831, p. 405. Wynn y. Hiday, ante, p. 123, and 
 note. 
 (2) Ante, p. 315. 
 
 PuGH I'. BuSSELo 
 
 Insolvent — Discharge — Foreign State. — A debtor was discharged, 
 under an insolvent law of Ohio, as to the imprisonment of his person, 
 
 (430)
 
 NOVEMBER TERM, 1830. 366-367 
 
 Pugh V. Bussel. 
 
 from a debt due to the payee on a promissory note. The parties re- 
 sided in Ohio, and the debt was there contracted. Held, that the debtor 
 might plead the discharge, so far as respected the imprisonment of his 
 person, in bar of an action brought against him in this state on the note 
 by an assignee thereof (a). 
 
 ERROR to the Rash Circuit Court. 
 
 Scott, J. — Debt by Bussel, assignee of Jackson, against. 
 Pug-h, in the Rush Circuit Court. The suit is brought on 
 a note, executed by Pugh to Jackson, when they both re- 
 sided in the state of Ohio. The defendant pleads a dis- 
 charge under the act of assembly of that state, for the re- 
 lief of insolvent debtors, and claims the benefit of that 
 discharge, as to his person, here. To this plea there is a 
 demurrer, and the judgment is for the plaintiff. 
 
 The case presents but one question for our considera- 
 tion : Is a discharge of the defendant, pursuant to the 
 insolvent law of Ohio, a bar to an action, as to the defend- 
 ant's person, in this state? The contract was made in 
 Ohio; the parties to the contract were, at the time, both 
 citizens of that state; the laws of Ohio gave effect to the 
 contract, and by those laws its legal operation ought to 
 be determined. If, by the laws of Ohio, the person of 
 the defendant was discharged from any further liability 
 to the plaintiff on that contract, his liability is not revived 
 by his becoming a resident of this or any other state : but 
 a discharge, good by the laws of the state where the par- 
 ties both resided, and where the contract was made, is 
 good everywhere. 1 Gall. Rep. 168. The assignment of 
 the note by Jackson to Bussel does not affect the case ; 
 the assignee acquired all the rights of the assignor and 
 no more. For these reasons, as well as from a consider- 
 ation of the reciprocal obligations of the states, under the 
 federal compact, we think the discharge of the defendant 
 in Ohio is a good bar to an action here, as to his person. 
 The judgment, if any, ought to be of goods and 
 [*367] ^chattels, lands and tenements, only (1). This 
 
 (a) Post 394. 
 
 (431)
 
 367 SUPREME COURT OF INDIANA. 
 
 John and Another v. The Farmers' and Mechanics' Bank of Indiana. 
 
 in opinion is supported by the decisions of the Courts 
 in Massachusetts, New York, Penns3dvania and Ohio. 1 
 Dall. Rep. 229; 2 Dall. Rep. 100; 5 Mass. Rep. 509; 2 
 Johns. Rep. 235, 363; 3 Binn. Rep. 201; 5 Binn. Rep. 
 332, 336 ; 1 Hamm. Rep. 236. 
 
 Per Curiam. — The judgment is reversed with costs. 
 Cause remanded, &c. (2). 
 
 Smith, for the plaintiff, 
 Bariden, for the defendant. 
 
 (1) Form of the judgment in such a case: Therefore it is considered, 
 that the said A. B. do recover against the said C. D. his damages aforesaid, 
 
 by the said inquisition above found, and also dollars for his costs and 
 
 charges by him about his suit in this behalf expended ; which said dama- 
 ges, costs, and charges, in the whole amount to dollars; to be levied 
 
 not on the person of the said C. D., but on his goods and chattels, lands and 
 tenements, according to law. And the said C. D. in mercv, &c. Bingh. on 
 Judg. 3-8. 
 
 (2) A re-hearing was granted in this cause, but the same judgment in it, 
 as in the text, was afterwards rendered. Vide the same case, Nov. term, 
 1831, post. 
 
 John and Another v. The Farmers and Mechanics' Bank 
 
 OF Indiana. 
 
 Corporation— Forfeiture of Charter— Pleading.— A plea in abate- 
 ment to an action by a corporation, that the charter is forfeited in conse- 
 quence of a mis-user or non- ustr of the franchises, can not be good, unless 
 it show the forfeiture to have been judicially declared at the instance of 
 the government (a). 
 
 Corporation — Note — Estoppel. — If a promissory note be given to a com- 
 pany as a corporation, the maker is estopped from contending that, at 
 the date of the note, the company was not a corporation (6). 
 
 Notes — Grace. — A promissory note dated the Lst of July, 1826, payable 
 to the President and Directors of the Farmers and Mechanics' Bank oi' 
 Indiana, at their office of discount and deposit at Lawrenceburgh, on ih.' 
 1st of July, 1829, is not entitled, under the statute, to days of grace ; noi- 
 ls it a paper in which the corporation is prohibited by its charter from 
 holding an interest. 
 
 {a) 34 Ind. 506 ; 10 Id. 563 ; 5 Id. 77 ; See 16 Id. 46, 456. 
 (6) 10 Ind. 47 ; 8 Id. 392 ; 7 Id. 416. 
 
 (432)
 
 NOVEMBER TERM, 1830. 367-368 
 
 John and Another v. The Farmers and Mechanics' Bank of Indiana. 
 
 APPEAL from the Dearborn Circuit Court. 
 
 HoLMAN, J. — The President and Directors of tlie Farm- 
 ers and Mechanics' Bank of Indiana filed their deehxra- 
 tion in debt against John & Noble, on a promissory note 
 for 200 dollars, dated the 1st of July, 1826, and payable 
 to the President, &c., on the 1st of July, 1829, at the office 
 of discount and deposit of the said President and 
 [*368] Directors in Lawrenceburgh; averring a ^demand 
 of payment, at their office of discount and deposit 
 in Lawrenceburgh, on the 1st of July, 1829, and a de- 
 mand of the makers of the note on the 30th of August, 
 1829. Breach, that the defendants had not nor had either 
 of them paid, &c. The defendants pleaded in abatement 
 that, before the issuing of the writ in this case, the said 
 President and Directors of the Farmers and Mechanics' 
 Bank of Indiana had ceased to be, and were not a cor- 
 poration in fact at the time the same was issued; the said 
 corporation having long before that time ceased to elect 
 their officers, and exercise their franchises, at the times 
 and in the manner prescribed by their charter. To this 
 plea there was a general demurrer, which the Circuit Court 
 sustained. The defendants then demurred to the declar- 
 ation, but their demurrer was overruled; and judgment 
 was given for the plaintiffs. The defendants appealed to 
 this Court. 
 
 In support of the plea in abatement, the appellants con- 
 tend that the general averment in the plea, that the Pres- 
 ident and Directors had ceased to be, and were not a cor- 
 poration in fact, being admitted by the demurrer, forms a 
 substantive cause of abatement, without any reference to 
 the subsequent averments in the plea; that it includes 
 every possible way in which a corporation might cease to 
 exist, except perhaps by the death of all its members ; 
 that if, when this action was commenced, the President 
 and Directors were not in fact a corporation, no matter 
 by what means they had lost their corporate existence, 
 they were not entitled to this action; and that if this 
 Vol. II.— 28 (433)
 
 368-369 SUPREME COURT OF INDIANA. 
 
 John and Another v. The Farmers and ^lechanics' Bank of Indiana. 
 
 general averment is to be taken in connection with, and 
 qualified by, the subsequent averments in the plea, still 
 the averments are sufficient to show that the corporation 
 is no longer in existence; that although, in general a non- 
 user or mis-user of corporate powers for a short time, 
 might not, when presented in this collateral way, be con- 
 sidered sufficient to show the non existence of the corpor- 
 ation, yet that a long neglect to elect its officers, and ex- 
 ercise its franchises, might be taken as an abandonment 
 or surrender of its charter. 
 
 The first member of this argument is defeated by the 
 clear distinction that exists between pleading the death 
 of an individual and the dissolution of a corporation. In 
 the case of an individual it is sufficient to aver his death. 
 
 The cause or manner of his death need not be 
 [*369] averred. Not so with a corporate *body that has 
 
 no natural existence, but which exists only by 
 operation of law. The death of an individual is a simple 
 fact. The dissolution of a corporation is a matter of law 
 arising from facts; and the facts that lead to the legal 
 conclusion that the corporation is dissolved, must be 
 averred in the plea. The general averment in this plea, 
 that the President and Directors had ceased to be, and 
 were not a corporation in fact, when the writ w^as sued 
 out, would not constitute a good plea. To give it a legal 
 form it must be taken in connection with the subsequent 
 averments which give the reasons for the general conclu- 
 sion that the}^ have ceased to exist as a corporation. 
 Then, the validity of this plea rests upon the legal con- 
 clusion that is to be drawn from the fact that the Pres- 
 ident and Directors had, for a long time before the writ 
 was sued out, ceased to elect their officers, or to ex- 
 ercise their franchises, at the times and in the -manner 
 prescribed by their charter. The mis-user or non-user 
 here pleaded, is i:a"id to have existed for a long time: 
 but if this time had no other limitation, it could not be 
 
 (434)
 
 NOVEMBER TERM, 1830. 369-370 
 
 John and Another v. The Farmers and Mechanics' Bank of Indiana. 
 
 presumed to run further back than the date of the note 
 on which the action is founded; as it has been "decided 
 that the appeUants, by contracting with the appellees as 
 a corporation, are estopped from saying that they were 
 not at that time a corporation. The Dutchess Cotton Man- 
 ufactory v. Davis, 14 Johns. R. 238. See also, Henriques 
 V. The Dutch West India Company, 2 Ld. Raym. 1532; 
 Hughes v. The Bank of Somerset, 5 Litt. 45. But time, 
 thus generally pleaded, is altogether uncertain and inde- 
 finite. No legal construction can extend the mis-user or 
 non-user, averred in this plea, beyond an indefinite or 
 mere point of time. And such a mis-user or non-user 
 would not be sufficient to authorize proceedings for a 
 seizure of the corporate franchises. The People v. Runkel, 
 9 Johns. R. 147. But this plea does not aver an absolute 
 non-user of the franchises at any point of time, but a neg- 
 lect to exercise them at the times and in the manner pre- 
 scribed by the charter. In the case of Slee v. Bloom, 5 
 Johns. C. R. 366, as reviewed in the Court of Errors, 19 
 Johns. R. 456, it was determined that a neglect to elect 
 the* corporate officers for several years, a sale of all the 
 property of the corporation, and an evident determina- 
 tion not to proceed in the business contemplated by their 
 charter, amounted to such a surrender of the fran- 
 [=5=370] chises as might be *taken advantage of by a cred- 
 itor. But, taking this plea in its fullest extent, 
 it shows no more than a mis-user or non-user of the fran- 
 chises, which of itself has never been considered such a 
 dissolution of a corporation as could be taken advantage 
 of in a collateral way. If it amounts to a forfeiture of 
 the corporate rights, that forfeiture must be judicially de- 
 termined and declared, at the instance of the govern- 
 ment, before it can be pleaded by an individual. Trus- 
 tees of Vernon v. Hills, 6 Cowen, 23. See, also, the above 
 cases of Slee v. Bloom, and Hughes v. The Bank of Somerset. 
 The conclusion is that the plea is insufficient to abate 
 the writ, and that the demurrer thereto was properly 
 sustained, (135)
 
 STO-371 SUPREME COURT OF INDIANA. 
 
 John and Another v. The Farmers and Mechanics' Bank of Indiana. 
 
 Tho appellants contend further that the declaration is 
 insufficient to maintain the action ; that the note declared 
 on was entitled, under the act of assembly, to three days 
 of grace, in like manner as an inland bill of exchange; 
 and that the demand at the office of discount and deposit 
 in Lawrenceburgh, on the day of payment mentioned 
 in the note, was three days before the true day of pay- 
 ment; and that the demand, subsequently made of the 
 payees personally, was not a compliance with the law, 
 not being made at the place of payment mentioned 
 ill tho contract. On examining the act of assembly 
 on this subject, R. C. 1824, p. 330, and the decision of tho 
 Court of Appeals of Kentucky in Stapp v. Anderson, 1 
 Marsh, 535, on a similar act, we are of opinion that the 
 note ic not embraced in the provisions of the act, and is 
 not entitled to days of grace. Nor is it a paper, as the 
 appelhxnts contend, in which the corporation is prohibited 
 by its charter from holding an interest. It does not pur- 
 port to have been an article of traffic; nor does it appear 
 that the corporation traded for it. It is introduced by 
 the President and Ph*ectors as evidence of a debt due to 
 them by the appellants; and there is nothing in that 
 clause of their charter, by which they are restrained from 
 trading in anything but bills of exchange, &c., that pro- 
 hibits them from taking a note, or any other instrument 
 of writing, to secure the payment of a debt. In the case 
 of The Bank of the United States v. Norton, 3 Marsh. 422, 
 it was decided that a restraining clause in the charter of 
 the Bank of the United States, similar to the clause un- 
 der consideration, did not prohibit that bank from pur- 
 chasing a promissory note, and receiving it -by 
 [*371] assignment, and *maintaining an action upon it. 
 But here there was no purchase in an3^sense of 
 the ternio The note is only evidence of a promise to pay 
 mone}^, presumed to be due from the payees, which prom- 
 ise was susceptible of proof by other evidence, if the note 
 liad not been given. 
 
 Scott, J, was absent. (436)
 
 NOVEMBER TERM, 1830, 371 
 
 The State v. Peden, in Error. 
 
 Per Curiam. — The judgment is affirmed, with 2 p€r cent. 
 damages and costs. 
 
 Dunn and Caswell, for the appellants. 
 Stevens and Stapp, for the appellees. 
 
 The State v. Peden, in Error. 
 
 AN indictment charged the defendant with having, by 
 shooting, maliciously wounded and injured a young mare,, 
 the property of A., of the value of 80 dollars. Held, that 
 the indictment was bad, under the statute, for not stating 
 the amount of damages occasioned by the injury com- 
 plained of. 
 
 Yandes and Another v. Lefavour and Another. 
 
 Partnership — Payment — Kelease by. — Payment of a debt to one part- 
 ner of a firm is good against the other partners ; and a release by one part- 
 ner to a debtor of the firm is obligatory on the others. 
 
 Same — Evidence — Admission. — Assumpsit in the name of A. and B. 
 against C, for work and labor performed by the plaintiffs as partners. 
 The defendant offered to prove admissions, made by one of the plaintiffs 
 after the partnership was dissolved, tending to show that after the disso- 
 lution, the parties had made a differrent contract respecting the payment 
 for the work than that under which the work had been done. Held, that 
 the evidence was inadmissible (a). 
 
 Same — Admlssion by. — The admission of one partner as to the existence of 
 a debt against the firm, made subsequently to the dissolution of the part- 
 nership, is not binding on the other partners. 
 
 Same. — An acknowledgement of a debt, made by one partner after a disso- 
 lution of the partnership, is not sufficient to take a case out of the statute 
 of limitations as to the other partners. 
 
 APPEAL from the Marion Circuit Court. 
 
 («) 3 Blkf. 433 ; 2 Ind. 322 ; 6 Id. 304 ; 12 Id. 223. 
 
 (437)
 
 371-372 SUPREME COURT OF INDIAXA. 
 
 Yandes and Another v. Lefavonr and Another. 
 
 Holm AN, J. — Assumpsit, in the name of Lefavour anl 
 ! Shrjock against Yandes and Wilson, late partne. j 
 
 [*372] in business, for *work and labor. The first count 
 is a general indebitatus assumpsit, the second a 
 quantum meruit. The gist of the action is, that the plain- 
 tiffs had jointly performed for the defendants work and 
 labor as mill-wrights, for which they were to be paid the 
 current price. This appears to have been the only joint 
 concern in which the plaintiffs had been engaged. On 
 the trial in the Circuit Court, the defendants offered in 
 evidence a letter written by Shryock, several years after 
 the termination of this joint undertaking, and a few days 
 after this suit was instituted, in which he disclaiais all in- 
 terest in the suit, and states that he and Lefavour did n.)t 
 complete the whole of the work they had undertaken, 
 and, in consequence thereof, agreed with the defendants 
 to receive pay for what they had done by the day; each 
 to receive his jjay separately for the number of days he 
 had worked ; that, in consequence of this agreement, the 
 defendant, Yandes, paid him for the time he had worked; 
 and that Lefavour was to receive his pay in the same man- 
 ner. Agreeably to a former decision of this Court, so 
 much of this letter as stated the amount that Shryock 
 had received on this contract was admitted in evideucCn 
 and the other parts were rejected. 
 
 There are two objects for which the appellants claim 
 the right of reading the whole of this letter. The first is 
 to show that, by a subsequent agreement, the joint con- 
 ■ cern of the appellees w^as so dissolved that a joint action 
 ' will not lie for any balance that may be due on the ori- 
 ginal contract; and secondly, to show that the original 
 contract was changed from a quantum meruit to a pay- 
 ment per diem. We think the letter was inadmi-ssible 
 for either of these purposes. It is admitted that paymem'- 
 to one partner, or one member of a joint concern, is bind 
 ing on the others; and by the same rule a release or ac- 
 quittance by one might be obligatory on the others. But 
 
 (438)
 
 NOVEMBER TERM, 1830. 372-373 
 
 Yandes and Another v. Lefavour and Another. 
 
 the question here is dittereut. The admissions of Shryock 
 go to set up a new contract; and if he was incompetent, 
 at the time he made the admissions, to execute a new con- 
 tract that would bind Lefavour, it would seem to follow 
 that his admissions were incompetent to prove that a new 
 contract had been made. 
 
 "VVe consider the principle settled, on American au- 
 thority, that, after the dissolution of a partnership, one 
 
 partner can not bind another by the admission of 
 [*373] a debt. In Hacklnj v. Patrick, *3 Johns. R. 536, 
 
 it was decided that, after the dissolution of a 
 partnership, the power of one partner to bind the others 
 wholly ceases ; that there is no reason why his acknowl- 
 edgment should bind his co-partners, any more than his 
 giving a promissory note in the name of the firm. And, 
 in that case, the acknowledgment was made by the 
 partner who was authorized to settle the partnership 
 accounts. The same principle was recognized in Walden 
 V. Sherburne, 15 Johns. R. 409. It has also been so decided 
 in Kentucky. Walker v. Duberry, 1 Marsh. 189. And 
 the doctrine of these cases is supported by the Supreme 
 Court of the United States. Bell v. Morrison, 1 Peters, 
 351. "We also consider that the principle is substantially 
 settled, that the acknowledgment of one partner will not 
 rake a case out of the statute of limitations. See an ex- 
 position of the cases on this question in the above-cited 
 case of Bell v. Morrison. In that case the position seems 
 to be correctly taken, that a promise that takes a case out 
 of the statute, is not a mere continuation of the original 
 promise, but a new contract springing out of, and sup- 
 ported by, the original consideration. "And if so," con- 
 tinues Judge Story, who delivered the opinion, "as after 
 the dissolution no one partner can create a new contract, 
 binding upon the others, his acknowledgment is inopera- 
 tive and void as to them.'"' 1 Peters, 371 (1). 
 
 Taking it then as the law that one partner or joint con- 
 tractor, after the joint engagement is at an end, can not 
 
 ^(439)
 
 373-374 SUPREME COURT OF INDIANA. 
 
 M'Creary i'. Fike. 
 
 make a new contract that will be obligatory on his 
 partner, we are unable to discover any good reason why 
 his admissions should be received to prove a new contract ; 
 or how this general principle is aftected by the relative 
 position of the parties, as being plaintiffs or defendants. 
 We therefore think the Circuit Court acted correctly in 
 rejecting the evidence. 
 
 There was a verdict for the plaintiffs, a motion for a 
 new trial which was overruled, and a judgment on the 
 verdict. On looking into the evidence, all of which is set 
 forth in a bill of exceptions, it appears to us that the jury 
 must have made a mistake in the amount of their verdict, 
 and that a new trial ought to have been granted. We 
 think there is no proof of the items set down by Lefavour, 
 on the bill made out by Sacket, and are at a loss to 
 know how the jury disposed of the payment about which 
 
 Justice FooTE testified. 
 [*374] "^Per Curiam. — The judgment is reversed, and the 
 verdict set aside, with costs. Cause remanded, &c. 
 
 Fletcher^ Merrill and Gregg, for the appellants. 
 
 Brown and Wick, for the appellees. 
 
 (1) "It has been repeatedly held in this Court, that though one partner, 
 after the dissolution, can not blind the otlier by any new contract, yet his 
 acknowledgment of a previous debt due from the partnership, will bind 
 the other partner, so far as to prevent him from availing himself of the 
 statute of limitations." Per Sutherland, J. Patterson v. Choate, 7 Wend. 
 445. An acknowledguT^nt within six years, by one of two makers of a joint 
 and several note, revives the debt against both. Whitcomb v. Whiting, 
 Doug. 652 ; Perham v. Pay)iall, 9 Moore, 566 ; Pritchard v. Draper, 1 Ru ss 
 & Mylne, 191. The declarations of one partner may be proved in order to 
 afiect the other partner's right in a partnershij) affair, although touching 
 matters which have occurred since (he dissolution of the partnership, namely, 
 the subsequent paymant of a partnership demand. Per Brougham, C. 
 Pritchard v. Draper, supra. Vide Lefavour et al. v. Yandes ei cd, ante, p. 240 ; 
 9 Kent's Comm. 2d ed. 49. 
 
 M'Creary c. Fike. 
 
 Practice — Demurrer to Evidence. — A party does not, by cross examin- 
 ing his opponent's witness, preclude himself from the right of demurring 
 to the evidence. 
 
 (440)
 
 NOVEMBER TERM, 1830. 374-375 
 
 M'Creary i'. Fike. 
 
 Same. — If a demiirrer to parol evidence contain all the evidence given, a 
 joinder in demurrer may be demanded. 
 
 Same. — When a demurrer to evidence is allowed, the jury may assess the 
 damages conditionally; or they may be discharged without making such 
 an assessment : in the latter case, should the demurrer be overruled, the 
 damages may be assessed by another jury on a writ of inquiry (a). 
 
 Same. — If, from the testimony set out in a demurrer, to the plaintiff's evi- 
 dence, the jury might have inferred that the action should be sustained, 
 the plaintiff is entitled to a judgment in his favor (6). 
 
 ERROR from the Marion Circuit Court. 
 
 Blackford, J. — This case originated before a justice of 
 the peace. Several statements of the demand were filed, 
 which are designated in the record by the letters B, C, D, 
 E, and F. Statement B is a transcript from the docket 
 of Justice Beeler, showing a suit by M'Creary. assignee 
 of Fike, against Thompson, on two sealed notes, due in 
 December, 1829. Statement C is an amended statement, 
 alleo;ii]o; that the notes filed as a cause of action, were as- 
 asigned by Fike to the plaintiff', in consideration of a 
 wagon and oxen ; that, after the assignment, the plaintiff 
 discovered that Thompson, the maker, was an 
 [*375] infant, and *would plead his infancy in bar to a 
 suit on the notes ; and that, on theplaintift''s men- 
 tioning this to Fike they made a new contract ; this con- 
 tract was, that the plaintiff' should sue on the notes, and 
 Fike be liable for the costs in case of failure; that Fike 
 should pay 100 dollars for the wagon and oxen, and 
 deduct from the amount whatever he might recover from 
 Thompson. The plaintiff* avers that he sued on the notes ; 
 and that Thompson, having pleaded infancy and fraud, 
 ol)tained judgment. Statement D is four sealed notes 
 given by Thompson to Fike, and assigned by the latter to 
 the plaintiff". Two of these we're due in December, 1829 ; 
 the others, in December, 1881. Statements E and F 
 relate to costs and other charges not necessary to be par- 
 
 (a) 48 Ind. 100 j 42 Id. 294; 8 Id. 264. (6) 60 Ind. 172. 
 
 (441)
 
 375-376 SUPREME COURT OF IXDIAIN'A. 
 
 M'Creary v. Fike. 
 
 ticularly uoticed. To these statements of demand, the 
 defendant pleaded non-assumpsit; and also, that the 
 plaintiff owed him a certain sum for a mare sold and de- 
 livered. On the trial before the justice, the plaintiff 
 recovered a judgment. The defendant appealed to the 
 Circuit Court. 
 
 To prove his case, on the appeal, M'Creary introduced 
 several witnesses; some of whom were cross-examined 
 by the defendant. The evidence tended to show the new^ 
 contract to be, that M'Creary was to sue Thompson on 
 the two notes which were due ; and that a failure in such 
 suit on the ground of fraud, or the maker's infancy, should 
 establish the liability of Fike as averred in the statements 
 of the demand. The transcript from the docket of Jus- 
 tice Beeler, of the suit against Thompson on tho notes 
 due, showing a judgment for Thompson with costs, was 
 given in evidence. There was parol proof, that Thomp- 
 son's defence in the cause was infancy and fraud; and 
 there was evidence tending to show that the defendant 
 had a demand for the price of the mare mentioned in the 
 plea. The defendant, having set out the whole of the 
 evidence, proposed to demur to the same, and requested 
 that the jury might be discharged. The plaintiff objected 
 to the demurrer; but the Circuit Court admitted it, and 
 ruled the plaintiff to join. A joinder was filed, and the 
 jur}' discharged. The defendant obtained judgment on 
 the demurrer. 
 
 The plaintiff", M'Crearj', complains of this judgment on 
 these grounds: 1st, that the defendant, after cross-exam- 
 ining the witnesses, could not demur; 2d, that the plain- 
 tiff could not be compelled to join in demurrer; 
 [*376] 3d, that the jury was illegally ^discharged ; 4th, 
 that the evidence* authorized a judgment for the 
 plaintiff. The first two objections are not tenable. The 
 practice is well settled that the defendant, under the cir- 
 cumstances of the case, had a right to demur, and the 
 phuntift' was bound to join in demurrer. There is no 
 
 (44i>)
 
 NOVEMBER TEKxM, 1830. 376 
 
 M'Creary v. Fike. 
 
 foundation for the third objection. The discharging of 
 the jury was not erroneous. In these cases, there are two 
 modes of proceeding. Whenever a demurrer to evidence 
 is allowed, the jury may assess the damages cop'^^^'^nally ; 
 or they may be discharged without such -ssj- In 
 
 the latter case, should the demurrer bi. "e lu.^v.., the 
 damages may be assessed by another jury on a writ of in- 
 quiry. 1 Arch. Pr. 209. 
 
 On the fourth objection, the plaintiff must succeed. 
 The defendant, to support the judgment, contends that 
 the contract set out in the statement of the demand dif- 
 fers from the one proved; the former showing that all 
 the notes were to be sued on ; the latter, that it was ne- 
 cessary to sue on the two only which were due. This po- 
 sition of the defendant is not sustainable. The several 
 statements of the cause of action relative to what notes 
 were to be sued on, are, when taken together, consistent 
 with the proof. The notes alluded to in the statement 
 marked C must have reference to the two notes wliich 
 were due, and which are described in the previous state- 
 ment marked B. The description of the cause of action, 
 and the evidence, both show that the defendant's liability 
 to the plaintiff depended on the result of a suit against 
 Thompson on the notes due in December, 1829. This 
 evidence relative to the notes to be sued on, together with 
 the other testimony given in the cause, conduced to prove 
 all the facts necessary to support the action. Whether, 
 from the evidence set out in the record, a jury would have 
 found for the plaintiff, is not for the Court to decide. 
 There was proof from which a jury might have inferred 
 that the action should be supported ; and that was suffi- 
 cient for the plaintiff. It is our opinion, therefore, that 
 the judgment of the Circuit Colirt on the demurrer to 
 evidence should have been in favor of the plaintiff. 
 
 Per Curiam. — The judgment is reversed, &c., with costs. 
 Cause remanded, &c. (1). 
 
 (443)
 
 376-377 SUPREME COURT OF INDIA:N^A. 
 
 Brackenridge, Administrator, v. Holland and Others. 
 
 Brown, for the appellant. 
 
 Fletcher and Merrill, for the appellee. 
 
 [*377] *(1) Are-hearing was granted in this case ; but the same judgment 
 in it, as above, was afterwards rendered. 
 
 Brackenridge, Administrator, v. Holland and Others. 
 
 Decedent's Estate — Settlement — Review. — The jurisdiction of a Court 
 of Chancery extends to the accounts of administrators, though settled in 
 the Probate Court, if there be evidently a mistake or fraud in the settle- 
 ment (a). 
 
 Trustee — Purchase of Trust Property. — A trustee, no matter how or 
 from whom he delivers his authority, can not purchase the trust-estate so 
 as to make a profit to himself. He is not prohibited from purchasing ; 
 but his purchase, when made, is for the benefit of the centui que Irust who 
 may, if he apply within a reasonable time, have a re-sale. If the prop- 
 erty be oflfered for sale a second time, and there be no advance, the 
 trustee is held to his purchase. 
 
 Same. — If an administrator, authorized by an order of Court to sell, at 
 public sale, the real estate of his intestate for the payment of debts, pur- 
 chase the land himself at the sale, and afterwards .sell the same at an 
 advanced price, he is liable to account for the profits to the heirs, for 
 whose benefit the administrator's purchase must be considered to have 
 been made. And the effect is the same, whether the purchase be made 
 by the administrator alone, or jointly with another ; or whether it be 
 made in person or by an agent (b). 
 
 Same — Amount of Liability. — If, owing to the conduct of the adminis- 
 trator, any uncertainty exists as to the amount of the profits made by 
 him on the purchase, he will be chargeable with the largest amount 
 which, from the circumstances, he can be presumed to have realized. 
 
 Same — It is a rule, both at law and in equity, that if a person having charge 
 of the property of another, so confounds it with his own that it can not 
 be distinguished, he must bear all the inconvenience of the confusion ; 
 and, if it be a case of damages, the damages given against him will be to 
 the utmost value of the property. 
 
 ERROR to the Franklin Circuit Court. 
 HoLMAN, J. — The heirs of John Holland, deceased, filed 
 their bill in chancery, stating that their father in his life- 
 
 (a) Ante, .343; 12 Irid. 381. 
 
 (6) 51 Ind. 292 ; 20 M. 193 ; 21 Jd. 80 ; 12 Id. 266 ; 49 Id. 114. 
 
 r444)
 
 NOYEMBER TERM, 1830. 377-378 
 
 Brackenridge, Administrator, v. Holland and Others. 
 
 time, about the 1st of i!^ovember, 1817, purchased of Rob- 
 ert and Joseph Brackenridge, a tract of kxnd for the sum 
 of 2,490 dollars ; of which he then paid 600 dollars, and 
 was to pay the balance by installments, for which he exe- 
 cuted several notes, bearing interest from the date, the 
 last payment to be made in six years; that their father 
 died in 1818, and administration of his estate was com- 
 mitted to Joseph Brackenridge and George L. Murdock; 
 that the administrators received large sums of money for 
 the personal property, and for debts due to the decedent, 
 which, with the annual profits of the land, would have 
 enabled them to pay off the notes for the purchase- 
 money of the land as the}' became due; there be- 
 [*378] ing no other debts of any ^considerable amount 
 against the decedent; that, notwithstanding this, 
 Brackenridge, in the absence of Murdock, filed an affi- 
 davit in the Probate Court, stating that the personal es- 
 tate was insufficient to pay the debts, and thereby pro- 
 cured an order of the Probate Court, in June, 1819, for a 
 sale of the land; that he made no return of his proceed- 
 ings under said order; but, from a deed in the recorder's 
 office, it appears that Robert and Joseph Brackenridge, 
 on the 20th of August, 1819, conveyed the said land to 
 Piatt, Grandon and Armstrong, in consideration of 2,500 
 <lollars; that by the records of the Probate Court of the 
 25th of February, 1823, it appears that the administra- 
 tors made a settlement of the accounts in that Court; 
 and, in the account then exhibited, the estate is credited 
 by 1,600 dollars as the price of the land, instead of the 
 sum of 2,500 dollars ; that, from this settlement it ap- 
 pears that there was then in the hands of the adminis- 
 trators the sum of 209 dollars and 86 cents; but the bill 
 charges that this settlement did not embrace the moneys 
 received by Murdock, and was not a correct account of 
 the moneys received by Brackenridge. The bill further 
 charges that Murdock has received and wasted moneys 
 belonging to the estate to the amount of 600 dollars, and 
 
 (445)
 
 378-379 SUPREME COUIIT OF INDIANA. 
 
 Brackenridge, Administrator, v. Holland and Others. 
 
 states that in 1826, Joseph Brackenridge died, and Rob- 
 ert Brackenridge was appointed liis administrator. Rob- 
 ert Brackenridge and Murdock are made defendants. 
 The bill prays for a full account of the administration, 
 and that the estate of Joseph Brackenridge, in the hands 
 of Robert Brackenridge, may be charged with the 2,500 
 dollars for which the land was sold. 
 
 Robert Brackenridge pleaded, in bar c^f the action, the 
 settlement made in the Probate Court by Joseph Brack- 
 enridge. To this plea there was a demurrer, which was 
 sustained by the Circuit Court. He then answered ; and 
 his answer admits the sale of the land to Holland, but 
 states that a large quantity of personal property was in- 
 cluded in the contract. He states that he does not know 
 the value of the personal estate, or the manner in which 
 it was administered, but by reference to the account ren- 
 dered by Joseph Brackenridge in the Probate Court, 
 which he believes to be correct; that the land was sold, 
 by virtue of the order of the Probate Court, at public 
 auction; that the sale was fair; that he and his partner, 
 Joseph Brackenridge, became the purchasers at 
 [*379] the sum of 1,600 dollars, which, *he avers, w^as 
 the full value; and that they made the purchase 
 for themselves, and not for the benefit of the heirs. He 
 admits that he and his partner sold the land to Piatt, 
 Grandon, and Armstrong, and that the consideration that 
 IS expressed in the deed is 2,500 dollars; but he says that 
 that was not the real consideration, as the land was ex- 
 changed, with other real property, for a lot of merchan- 
 dise estimated at 6,000 dollars ; and that he does not be- 
 lieve it would have sold for 1,600 dollars in cash, 
 
 Murdock answered, and, with some account of his 
 separate administration, denies taking any part in the set- 
 tlement in the Probate Court ; stating that it was made 
 without his knowledge, and that he had no hand in re- 
 ceiving or disbursing any part of the estate set forth in 
 that account. He denies having any concern in the sale 
 
 (446)
 
 NOVEMBER TERM, 1830. 379-3b0 
 
 Brackenridge, Administrator, i-. Holland and Others. 
 
 of the land ; and states that, being about to leave the 
 state, his co-administrator expressed an opinion that the 
 estate was perfectly solvent, and that he was willing to 
 take back the land in discharge of the debt due from the 
 estate to himself and partner ; and that during his ab- 
 sence the land was sold. 
 
 We learn from the depositions, that Holland, when he 
 purchased the land, received with it, of R. and J. Brack- 
 enridge about 500 dollars worth of personal property, 
 which formed a part of the contract; that 1,600 dollars 
 was a high price for the land, at the time it was pur- 
 chased by R. and J. Brackenridge in 1819 ; but that no 
 material variation had taken place in the value of the 
 land between the years 1817 and 1819. The order of the 
 Probate Court shows, that the Court fixed the terms of 
 credit, the day and place of sale, and ordered their clerk to 
 make out advertisements, &c. The auctioneer testifies that 
 the sale was public, that a large collection of people were 
 present, that the land was cried for a long time, and was 
 bid off by John Shanks for R. and J. Brackenridge. Gran- 
 don, one of the firm, to whom R. and J. Brackenridge sold 
 the land, states that it was purchased by them, with other 
 real property, in a contract for merchandise ; that the only 
 reason why they purchased the land was, that they had 
 a large quantity of merchandise, and were anxious to dis- 
 pose^of it. Murdock's deposition was taken, in which he 
 makes some charges against his co-administrator of 
 moneys not accounted for, and repeats the state- 
 [*380] ment in his answer *that his co-administrator ex- 
 pressed a willingness to take back the land in dis- 
 charge of the debt to himself and partner. 
 
 On the final hearing of the cause, the Circuit Court 
 entered a decree against Robert Brackenridge, as admin- 
 istrator of Joseph Brackenridge, for the sum of 569 
 dollars and 62 cents, with interest from the 25th of Feb- 
 ruary, 1823, amoutingin all to 808 dollars and 86 cents, to 
 be levied of the goods, &c., of his intestate ; and a decree 
 
 (117)
 
 380-381 SUPREME COURT OF INDIANA. 
 
 Brackenridge, Administrator, i. Holland and Others. 
 
 aii;iii list both of the defendants, for 104 dollars and 25 cents 
 principal and interest, being a sum for which the estate 
 of Joseph Brackenridge and Mnrdock were jointl}' 
 liable ; and postponed the account of the separate admin- 
 istration of Murdock for further consideration. From 
 this decree, Brackenridge alone appealed to this Court. 
 
 Two leading questions are presented for our determina- 
 tion. The first regards the jurisdiction of a Court of 
 chancery, to inquire into a settlement of an administra- 
 tion account in the Probate Court. The second, the right 
 of an administrator to purchase lands which he, as ad- 
 ministrator, is authorized to sell. 
 
 The first has been settled, at the present term, in the 
 case of Allen v. Clark. It is there determined, that the 
 settlement in the Probate Court is to be taken as prima. 
 facie correct, but is not conclusive ; that, on a proper case 
 beingmade, the account maybe re-examined in a Court of 
 chancery. Here, the disposition of the land presents a 
 case that more particularly requires the interposition of 
 a Court of chancery. 
 
 The second question seems also to be settled. A trustee, 
 no matter how or from whom he derives his authority, 
 can not purchase the trust-estate so as to make a profit 
 to himself. There is no general rule that he shall not be 
 a purchaser; but if he is, his purchase is for the benefit 
 of the cestui que trust. If the trustee to sell becomes a 
 purchaser, however fair the transaction, it is subject to an 
 option in the cestui que trust, if he comes in a reasonable 
 time, to have a re-sale. Campbell v. Walker, 5 Yes. 678. 
 If it is offered for sale a second time, and there is no ad- 
 vance of price, the trustee is held to his purchase. Lis- 
 ter V. Lister, 6 Ves. 631. Where the sale was effected 
 through the medium of a trustee, and he became the pur- 
 chaser, though without fraud, and by auction, the sale was 
 set aside; the circumstance of its having been by auction 
 made no difference. Sanderson v. Walker, 13 Ves. 
 [-''381] 600. A trustee is not permitted *to purchase a 
 
 (^-18)
 
 NOVEMBER TERM, 1830. 381 
 
 Brackenridge, Administrator, v. Holland and Others. 
 
 mortgage, or judgment, that is a lien on the trust-estate 
 for his own benefit. Green v. Winter, 1 J. C. R. 27. An 
 executor, acting with regard to tlie testator's property 
 in any other manner than the trust requires, is answerable 
 to the cestui que trust for any gain, and liable for any loss. 
 Piety V. Stace, 4 Ves. 620. In Maryland, an administrator 
 or executor can not purchase at his own sale, and the con- 
 firmation of such purchase in the Orphans' Court does 
 not preclude the Court of chancery from setting it aside. 
 Conway v. Green, 1 Har. & J. 151. In North Carolina, an 
 executor is not permitted to become a purchaser in a sale 
 made by him as executor, notwithstanding such sale be 
 public, necessary, fair, and for a full price. Ryden v. Jones, 
 1 Hawks. 497. In South Carolina, the same principle is 
 maintained to a general extent. Perry v. Dixon, 4 De- 
 sauss. 504. The three last cases are given on the author- 
 ity of 3 Wharton's American Digest, 276, 278. The case 
 of Guier v. Kelly, 2 Binn. 294, cited by the counsel for 
 the appellant, accords in principle with these decisions. 
 A contrary doctrine seems to prevail in Virginia; but we 
 think from the foregoing cases, and many more that are 
 in accordance with them, that the purchase made by R. 
 and J. Brackenridge, under the order of the Probate 
 Court, must be considered as made for the benefit of the 
 heirs. The circumstances of the time, place, terms of 
 credit, and manner of giving notice of the sale, being 
 regulated by the Probate Court, does not materially 
 change the case, as much was still left in the power of 
 the administrator; and he might have exerted an influ- 
 ence on the sale that lies beyond the ordinary means of 
 detection. The object of the rule is to banish from his 
 mind all thought of speculating on the trust-estate. A 
 method is suggested in the books, whereby he might le- 
 gally become the purchaser. If the land was publicly 
 exposed to sale, and he was willing to go beyond the high- 
 est bid, he might postpone the sale, tile a bill, or report 
 the fact to the Court from whence he derived his author- 
 VoL. II.— 29 (449)
 
 381-382 SUPREME COURT OF mDIA:N'A. 
 
 Brackenridge, Administrator, v. Holland and Others. 
 
 ity; showing the amount of the highest bid, and that he 
 was willing to give more. The Court might order that 
 he should have the land. Davoue v. Fanning, 2 J. C. R. 
 261 ; Cam])bell v. Walker, 5 Ves. 678. 
 
 This case is not altered, in principle, by Robert Brack- 
 enridge uniting with the administrator in the pur- 
 [*382] chase, nor by the land *being bid oft' for them by 
 Shanks; for the rule extends to a purchase made 
 by a trustee for another person ; ex jutrte Bennett, 10 Ves. 
 381 ; and to a purchase made by a third person for the 
 wife of the trustee. Davoue v. Fanning, 2 J. C. R. 252. 
 In this last case, the executor was authorized to sell lands 
 to raise legacies for the testator's children, of whom the 
 wife of the executor was one. The executor and his wife 
 authorized a third person to purchase in trust for the wife. 
 After the purchase, large improvements were made on 
 the land. Chancellor Kent, after reviewing a long train 
 of uniform decisions on the subject, ordered a re-sale : the 
 land to be set up at a sum which included the price of 
 the former purchase and the value of the improvements; 
 and, if it would not sell for more, the purchase to stand, 
 but if it sold for more, the former sale to be vacated. 
 The rule mentioned in some of these cases, that the cestui 
 que trust must apply in a reasonable time to have a re-sale, 
 or the purchase will be considered valid, does not apply 
 in this case. Most of the heirs are still minors, whose in- 
 terest is seldom aftected by lapse of time ; besides, the 
 sale of the land by R. and J. Brackenridge to Piatt, Gran- 
 don and Armstrong, in less than two months after the 
 purchase, and before any report was made of the proceed- 
 ings under the order of sale, precluded the heirs from de- 
 manding a re-sale. In such a case, the rule is^ that the 
 trustee shall account for all the profits he has made. One 
 of several trustees having purchased the trust-property, 
 and afterwards sold it at a profit, was decreed to account 
 for that profit. Whichcote v. Lawrence, 3 Ves. 740. In 
 Rayidall v. Errington, 10 Ves. 422, there was a fair sale, 
 
 (450)
 
 NOVEMBER TERM, 1830. 382-383 
 
 Brackenridge, Administrator, t. Holland and Others. 
 
 and the trustee purchased at auction for a full price, yet 
 as he had sold a part at some profit, the Court opened 
 the sale, at the instance of the cestui que trust, as to the 
 parts unsold, and compelled the trustee to account for the 
 profits on the parts he had sold. An executrix sufiered 
 land, of which the testator died seized, to be sold under a 
 mortgage, and became the purchaser in her own right, 
 and afterwards sold it; and she w^as held accountable to 
 the heirs for the proceeds of the sale. Evertson v. Tapperiy 
 5 J. C. R. 497 (1). 
 
 The most serious difficulty in this case is to determine 
 the amount of profits made by R. and J. Brackenridge in 
 selling this land to Piatt, Grandon and Armstrong. The 
 
 consideration in the deed is 2,500 dollars, which 
 [*383] is 900 dollars more than the *price of the first 
 
 sale ; but the land was exchanged with other prop- 
 erty, for a lot of merchandise. This difficulty, however, 
 arises from the act of the administrator, and he is charge- 
 able with all the inconveniences that have resulted from 
 that act. The rule both in law and equity is, that if a 
 person having cliarge of the property of another so con- 
 founds it with his own that it can not be distinguished, 
 he must bear all the inconvenience of the confusion. If 
 :t be a case of damages, damages will be given against 
 him to the utmost value of the articles. Lupton v. White, 
 15 Ves. 432; Hart v. Ten Eyck, 2 J. C. R. 62; Armory v. 
 Delamirie, 1 Strange, 505. This rule, applied in all its 
 strictness, would charge the administrator with the nom- 
 inal amount stated in the deed as the consideration of the 
 conveyance, unless he could show that the consideration 
 was a less sum. And, although that sum was received in 
 merchandise, the case w^ould not be altered, unless it was 
 clearly shown that there was a difference between that 
 amount in merchandise and in cash, and what that differ- 
 ence was. There are some other facts in the case that 
 have a remote bearing on this question. A short time 
 before the sale of this land by the administrator he ex- 
 
 (451)
 
 383-384 SUPREME COURT OF IXDIAXA. 
 
 Brackenridge, Administrator, t. Holland and Others. 
 
 pressed to bis co-administrator a ^yilli^glless to take back 
 tbe laud iu discbarge of tbe original porcbase-money, 
 wbicb tben amounted to near 2,000 dollars, wbicb would 
 bave allowed tbe estate of Holland nearly 400 dollars 
 more tban be bas accounted for. Tbis land was pur- 
 cbased by Holland of R. and J. Brackenridge in 1817, for 
 1,990 dollars, allowing 500 dollars as tbe price of tbe per- 
 sonal property, and supposing 500 dollars of tbe money 
 advanced by Holland were to pay for tbe personal prop- 
 erty. Tben, 100 dollars were advanced for tbe land. 
 For tbe balance a credit was given, but it bore interest 
 from tbe time of tbe purcbase. Tben, at tbe time of tbe 
 administration sale, tbe amount due for principal and in- 
 terest, togetber witb tbe sum advanced, was but little 
 sbort of 2,200 dollars; wbicb was tbe sura tbat tbe beirs 
 of Holland might be said to be paying, and R and J. 
 Brackenridge receiving for tbe land, at tbe time tbey bid 
 it off at 1,600 dollars, and at tbe time tbey sold it. as tbey 
 say, for tbe nominal consideration of 2,500 dollars; and 
 we learn tbat no material variation in tbe price of tbe 
 land bad taken place between tlie time wben Holland 
 purchased and tbe time of tbe sale to Piatt, Gran- 
 [*384] don and Armstrong. We ^mention tbese circum- 
 stances, not as presenting any definite criterion 
 of tbe profit made by tbe administrator, but to sbow tbat 
 be bas but little reason to complain of tbe decree of tbe 
 Circuit Court. 
 
 Tbere is so mucb obscurity in tbe accounts of botb tbe 
 admininistrators as to tbeir separate and joint adminis- 
 tration, tbat we are not able to discover tbe precise data 
 upon wbicb tbe Circuit Court predicated its decree ;'but 
 tbis is unimportant, as we are fully satisfied tbat tbe 
 separate decree against Brackenridge, from wbicb alone it 
 is presumed be appealed, is authorized by tbe facts in 
 the case, and must be nflirmed. 
 
 Per Curiam. — The decree is affirmed, with 2 j)er cent. 
 damages and costs. 
 
 (452)
 
 NOVEMBER TERM, 1830. 384-385 
 
 Porter r. Brackenridge. 
 
 M' Kinney and Caswell, for the plaiutifl'. 
 Morris, for the defendant. 
 
 (1) Vide Whelpdale v. Cookson, 1 Ver. sem. 9. Same case stated more at 
 large, Belt's Siipp. 7. "Although there is no positive rule, that a trustee to 
 sell shall not, in any case, be himself the purchaser, inasmuch as he is not 
 precluded from entering' into a new contract Y>'ith his cestui que trust, yet 
 he is not permitted in any other case to make a profit to himself. Whichcote 
 V. Laurence 3 Ves. jun. 740. Upon which see Ld. Eldon C.'s observations, 
 6 Ves. 626. 
 
 The purchase in Coles v. Trecothick, 9 Ves. 234, was supported upon the 
 ground of a distinct and clear contract with the cestui que iimst, he having 
 the fullest information, and having the sole management ; the trustee being 
 passive as to the latter circumstances. Fox v. Macbeth, 2 Bro. 400, and 
 affirmed on appeal in Dom. Proc. 1791, is considered as a leadiug case in 
 support of the rule that a trustee for sale shall not take advantage of his 
 situation so as to purchase for his Own benefit. 
 
 To set aside such a purchase, it is not incumbent upon the party to show 
 that the trustee has made an advantage, 8 Ves. 348 ; but it is in the choice 
 of the cestui que trusts to judge for themselves whether they will take back 
 the property or not, 6 Ves. 627 ; so that in such a case the trustee can never 
 be allowed to retain an advantage, but may suffer a loss. Lister v. Lister y. 
 6 Ves. 631. 
 
 This doctrine is not confined to trustees, but extends to assignees under 
 commissions of bankrupt, solicitors, agents, and in short all persons having; 
 a confidential character. Ex parte Laceij, 6 Ves. 625 ; Ex parte Hughes and 
 Ex parte Lyon, ib. 617 ; Ex parte Aituood and Oiien v. Foufkes, cited ib. 630, 
 note b; Ex parte James, 8 Ves. 337. See JWEnzie v. York Buildings Com- 
 pany, Dom. Proc. cited 6 Ves. 630. The principle being as above, it seems 
 that the sale being by auction makes no difference. See 8 Ves. 348 ; Nel' 
 thorpe V. Pennymun, 14 Ves. 517.'' Belt's Supp. 10, 11. 
 
 L*385] *PoRTER y. Brackenridge. 
 
 Pleading — Duplicity. — Debt against the administrator of A. on a joint 
 and several bond executed by A. and B. to the plaintiff, conditioned for 
 the performance of covenants. Plea, that the intestate was only a surety ; 
 that the plaintiff had agreed with B., without (he defendant's knowledge, 
 to take a judgment by confession against B. for 275 dollars, in a suit on 
 the bond then pending again.st him, it being a less sum than the plaintiflf' 
 pretended he could recover ; and to take a judgment against the present 
 defendant for the costs of an action then pending against him on the 
 bond ; that judgments had been rendered conformably to this agreement. 
 Held, that this plea was not double ; and that it was a good bar to the 
 action. 
 
 Same. — A plea, to be objectionable for duplicity, must contain more than 
 one valid defence to the suit («). 
 
 (a) See 4 Ind. 409. 
 
 (453)
 
 685-386 SUPREME COURT OF INDIANA. 
 
 Porter i: Brackenridge. 
 
 ERROR to the Franklin Circuit Court.— Debt by 
 Porter against Brackenridge, administrator. Special plea 
 in bar. Demurrer to the plea, and judgment for the de- 
 fendant. 
 
 Blackford, J. — Tliis was an action of debt on a joint 
 and several bond in the penal sum of 1,000 dollars, exe- 
 cuted by one Van Camp and the defendant's intestate, 
 and conditioned for Van Camp's making a title to the 
 plaintiff for a certain tract of land. The defendant pleaded 
 two pleas. To the first plea the plaintiff replied, and ob- 
 tained judgment on demurrer to his replication. Any 
 further notice of that plea is therefore unnecessar}'. The 
 second plea states that the intestate was only a surety in 
 the bond; that the plaintiff had agreed with Van Camp, 
 without the defendant's knowledge, to take a judgment 
 by confession against Van Camp for 275 dollars, in a suit 
 on the bond then pending against him, it being a less sum 
 than he pretended he could recover; and to take a judg- 
 ment against the defendant for the costs of an action then 
 pending against him on the bond. The plea further states, 
 that judgments were entered in accordance with that 
 agreement. To this plea, the plaintiff demurred specially. 
 The plea is alleged to be double. Its duplicity is said to 
 consist in its showing, 1st, that the defendant's intestate 
 was a surety, and that the plaintiff entered into an agree- 
 ment with the principal which legally discharged him; 
 2dly, that there was a former recovery against the defend- 
 ant by the plaintiff for the same cause of action. It is also 
 alleged, that the plea is defective because thQ 
 [*386] ^agreement to take the judgment against Van 
 Camp, and the actual taking of it. is no defence. 
 
 The causes of demurrer must be considered together. 
 The part of the plea to which the last objection applies is 
 no bar of itself. If it were, the plea would be double. The 
 objection for. duplicity depends on the question, whether 
 the plea contains more than one valid defence to the 
 suit. Stevens on Pleading, 272. That is not the case 
 
 (454)
 
 NOVEMBER TERM, 1830. 386 
 
 Porter v. Brackenridge. 
 
 here. The agreement of itself is no defence; nor is the 
 agreement with the judgment against Van Camp, without 
 a stay of execution, &uy bar — whatever it might have 
 been, had execution been stayed. It is tlie agreement, the 
 entry of the judgment against Van Camp, and the entry 
 of the judgment against Brackenridge, taken togetlier as 
 one defence, that are relied on in order to make out a 
 valid plea of former recovery against Brackenridge, for 
 the same cause of action with the present one. ^o one of 
 the facts is of itself a sufficient bar; but all of them united 
 form one connected plea, which shows, 'prima facie, that 
 there had previousl}^ been an adjudication on the merits 
 of the cause, both against Van Camp and the defendant. 
 If the merits of the cause of action, in this case, were 
 really not adjudicated on and determined by the former 
 suit, the plaintiff might have replied that fact. The plea 
 is valid, and the judgment of the Circuit Court correct. 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Smith and Hariden, for the plaintiff. 
 
 M' Kinney ^ ior the defendant. 
 
 END OF NOVEMBER TEEM, 1830. 
 
 (455)
 
 [*387] * CASES 
 
 ARGUED AND DETERMINED 'r 
 
 I 
 
 IN THE 
 
 SUPREME COURT OF JUDICATURE 
 
 OF THE 
 
 STATE OF INDIANA, 
 
 AT INDIANAPOLIS, MAY TERM, 1831, IN THE FIFTEENTH YEAB OF 
 THE STATE, 
 
 MEMORANDA. 
 
 THE constitutional term for which the Judges of the 
 Supreme Court were commissioned expired during the 
 preceding vacation. 
 
 In the same vacation, Stepiien C. Stevens and John T. 
 M'Kinney, Esquires, were appointed Judges, in the place 
 of James Scott and Jesse L. Holmau, Esquires. And, at 
 the same time, Isaac Blackford, Esquire, "W' as reappointed 
 one of the Judges of the Court. 
 
 The commissions of the present Judges bear date on 
 the 28th day of January, 1831. 
 
 Evans and Others v. The State. 
 
 Official Bond — Breach of — Pleading. — Debt against A. on a penal 
 bond payable to the state. The condition of the bond was, that A. should 
 well and truly discharge the duties of collector of the state and county 
 revenue of Owen county for the year 1829. and pay over the same as by 
 
 (456)
 
 MAY TERM, 1831. 387-388 
 
 Evans and Others r. The State. 
 
 law required. The declaration, after setting out the bond and condition, 
 
 averred that A. had not paid over the taxes assessed on the county 
 
 *388] of Owen to the county *treasurer, nor accounted for the same to the 
 
 said treasurer, in the manner prescribed by law. Held, on special 
 
 demurrer, that the declaration was insuflBcient (a). 
 
 ERROR to the Owen Circuit Court. 
 
 Stevens, J. — This was au action of debt brought by the 
 defendant in error, in the Owen Circuit Court, on the re- 
 lation of Samuel Howe, the treasurer of said county of 
 Owen, agaiust the plaintiffs in error, on a bond for 20,000 
 dollars payable to the state of Indiana, bearing date the 
 19th day of June, 1829, conditioned that the said Andrew 
 Evans, Jun., " should well and truly discharge the duties 
 of collector of the state and county revenue of the county 
 of Owen aforesaid for the year 1829, and pay over the 
 same as by law required.'' The declaration sets out the 
 bond and condition, and then avers "that the said An- 
 drew Evans, Jun., wholly failed and neglected to discharge 
 his duty as such collector, and more especially in this, to 
 wit, that the said Andrew Evans has wholly failed and 
 neglected to pay over the taxes assessed on his county of 
 Owen to the treasurer of said county, or to account there- 
 for to said treasurer in the manner prescribed by law." 
 These are all the substantive breaches assigned. The de- 
 fendants demurred to the declaration and set down as 
 causes of demurrer, 1st, " that it does not appear by said 
 declaration that the assessment roll for the year 1829 was 
 delivered by the clerk to the said Andrew Evans, Jun. ; 
 2d, the declaration does not show the amount of taxes 
 collected by said Andrew Evans; and, 3d, there is no aver- 
 ment that any precept was ever delivered to the said An- 
 drew Evans, commanding him to collect the taxes for the 
 year 1829." The demurrer was overruled and judgment 
 rendered for the plaintiff; and the question now is, 
 whether the Court erred in overruling the demurrer and 
 
 (a) 6 Blkf. 173 ; 8 Id. 527. 
 
 (457)
 
 388-389 SUPREME COURT OF INDIANA. 
 
 Evans and Others v. The State. 
 
 rendering judgment against the defendants in favor of 
 the plaintift". 
 
 The bond dechxred on is a penal bond, conditioned for 
 the performance of the duties of a collector of state and 
 county revenue. There is no original debt due from the 
 obligors to the obligee, and the obligee could have no 
 right of action, legally, until the collector failed to dis- 
 charge his duties as such collector. Collectors of revenue 
 have no duties to perform until there is an assessment of 
 taxes made, and the assessment rolls corrected, ap- 
 
 proved, and filed in the office of the clerk of the 
 [*389] ^Circuit Court of the proper county, and a true 
 
 transcript of such assessment roll delivered by the 
 clerk to the collector, together with a precept in the name 
 of the state of Indiana, under the seal of the Circuit Court, 
 commanding the collector to collect the taxes set forth in 
 the copy of the assessment rolls so delivered to him. R. 
 C. 1824, p. 342, sec. 10, 11 ; Stat. 1825, p. 68, sec. 15, 16. 
 
 To entitle the plaintift' in this case to recover a final 
 judgment and execution, it was necessary that he should 
 spread upon the record, by legal averments, an assign- 
 ment of breaches showing that the collector, Andrew 
 Evans, had failed to perform his duties as such collector, 
 and that thereby damages had been sustained. There are 
 two modes by either of which this could have been done. 
 The bond could have been declared on as a common bond, 
 and the breaches assigned in the replication to the defend- 
 ant's plea, if they had pleaded, setting out the condition; 
 if they had not so pleaded, the breaches could have been 
 assigned upon the record ; or the bond and condition 
 could have been set out, andthe breaches assigned in the' 
 declaration. Gainsford v. Griffith, 1 Saund. 58, n. 1; 
 Ethersey v. Jackson, 8 T. R. 255 ; Homfray v. Bigby, 5 M. 
 & S. 60 ; De La Rue v. Stewart, 2 New Rep. 362 ; 1 Blackf. 
 Rep. Appendix, 437. The plaintiff has elected the latter 
 mode, and has assigned two breaches only. First, '-that 
 the said Andrew Evans, jun., has wholly failed and neg- 
 
 (458)
 
 MAY TERM, 1831. 389-390 
 
 Evans and Others v. The State. 
 
 lected to discharge his duty as such collector." This breach 
 is insufficient, being vague and general without specifying 
 how or in what manner he neglected and failed. Shum v. 
 FarringtoUy 1 Bos. & Pul. 940 ; Cornwallis v. Sai:ery, 2 Bur- 
 row, 772 ; Cheshire Bank v. Bobinsoh, 2 New Hamp. Rep. 
 126. The other breach is, " that the said Andrew Evans 
 lias wholly neglected and failed to pay over the taxes as- 
 sessed on his said county." This breach is also insufficient, 
 standing alone as it does, unsupported by other necessary 
 averments. The averment may be true and yet the 
 plaintiff not legally entitled to recover. It must appear by 
 proper averments, that there was an assessment of taxes 
 for county purposes on the county of Owen for the year 
 1829 ; and that there were assessment rolls of said taxes 
 made, corrected, approved, and filed in the office of the 
 clerk of the Circuit Court of the county ; and that 
 [*390] a true copy thereof had been delivered by *the 
 clerk to the collector, together with a precept 
 commanding him to collect the taxes according to law. 
 
 Per Curiam. — The judgment is reversed. Cause re- 
 manded to the Circuit Court, with directions to permit the 
 plaintiff" below to withdraw the joinder in demurrer, and 
 amend the declaration. 
 
 Hester, for the plaintiffs. 
 
 Naylor, for the defendant. 
 
 END OF MAY TERM, 1831. 
 
 (459)
 
 [*39i] * CASES 
 
 ARGUED AND DETERMINED 
 
 IN THE 
 
 SUPREME COURT OF JUDICATURE 
 
 STATE OF INDIANA, 
 
 AT INDIANAPOLIS, NOVEMBER TERM, 1831, IN THE SIXTEENTH YEAR OP 
 
 THE STATE. 
 
 Arnold and Others, v. Styles and Others. 
 
 Keview of Judgment — Kealty — Venue. — A bill in chancery was filed in 
 the Union Circuit Court, to revive a decree of the Franklin Circuit Court 
 in favor of the complainant's ancestor, respecting land situate, at the time 
 of the decree, in Franklin County. When the bill of revivor was filed, 
 the land, in consequence of a change of county boundaries, lay in Union 
 county. Held, that the bill of revivor should have been filed in the 
 Franklin Circuit Court ; the Union Circuit Court having no jurisdiction 
 of the cause. 
 
 The merits of the decree can not be disputed by an answer to the bill of re- 
 vivor. 
 
 Practice — Demurrer. — The mode of objecting to an answer as insufficient, 
 is not by demurring, but by filing exceptions. 
 
 ERROR to the Union Circuit Court. 
 
 M'KiNNEY, J. — The hill is tiled in the Union Circuit 
 Court by the heirs of Elizabeth Styles, to revive a decree 
 which had been rendered in the Franklin Circuit Court, 
 in favor of Elizabeth Styles against the heirs of Bird 
 Styles. 
 
 The complainants show the proceedings had in the 
 
 (460)
 
 NOVEMBER TERM, 1831. 391-392 
 
 Arnold and Others r. Styles and Others. 
 
 Franklin Circuit Court, on a bill filed in 1818 by Elizabeth 
 Styles against the heirs of Bird Styles; refer to and make 
 the bill, exhibit, and decree in that cause, a part of their 
 bill; and charge that the tract of land, the subject of lit- 
 igation in that suit and then within the bounds of 
 [*392] Franklin county, is at present within those *of 
 Union county; that the complainants are resi- 
 dents of the same county ; that Elizabeth Styles died be- 
 fore the decree, or any part of it, was executed ; that they 
 are her legal heirs ; and pray that the defendants may ap- 
 pear and show cause, if any they have, why the decree and 
 other proceedings, abated as charged, should not be re- 
 vived, and put in the same condition, &c. The defend- 
 ants by their guardian answer as follows: that they are 
 strangers to the proceedings had in the Franklin Circuit 
 Court; that they are informed and believe that the pro- 
 ceedings are inoperative ; that they then were and still are 
 infants, and were without a guardian in that Court; that 
 they believe that Elizabeth Styles had no other than a life 
 estate in the premises; that the allegations in the bill, 
 setting up a claim to the moiety of the land therein men- 
 tioned, were without foundation, and the proceedings a 
 fraudulent attempt to take advantage of their youth and 
 inexperience. They ask that the complainants be com- 
 pelled to make strict proof of the allegations in the bill 
 of Elizabeth St3des. To the answer the complainants de- 
 murred; the defendants joined in demurrer; and judg- 
 ment was rendered in favor of the defendants, dismissing 
 the bill with costs. 
 
 Bills of revivor are embraced in the class of " Bills not 
 original," and are either an addition to or a continuance of 
 an original bill, or both. Mitf. PI. 31. The suit in the 
 Franklin Circuit Court abated by the death of the com- 
 plainant. If the decree was not executed before her 
 death, as charged by the bill, her representatives, claim- 
 ing an interest under it, arc properly complainants to a 
 bill of revivor. Formerly, when a suit abated after a 
 
 (461)
 
 392-393 SUPREME COURT OF INDIANA. 
 
 Arnold and Others v. Styles and Others. 
 
 decree signed and enrolled, the decree was revived by 
 scire facias. That practice has, however, yielded to the 
 more ample relief afforded by the bill of revivor. By 
 this bill, matter not litigated by the original parties can 
 not be introduced after a decree. The bill merely con- 
 tinues the original suit and enables its prosecution by 
 those whose interests have attached by the abatement. 
 If the decree of the Franklin Circuit Court has not been 
 executed, upon its revival, the representatives of the com- 
 plainant, as regards the question of enforcement, or act 
 to be done, occupy the same ground that the complainant 
 herself would have done. It is well settled that when 
 
 the jurisdiction of a Court of chancery attaches, 
 [*393] it is ^retained until it fully acts upon the subject 
 
 before it. Rathhone v. Warren, 10 Johns. Rep. 
 587; 1 Madd. Ch. 28. 
 
 The complainants contend, that although in England a 
 revival must have been in the Court in which the original 
 proceedings were had, yet in this state it is different. We 
 can not perceive a distinction. The necessity to revive 
 in the same Court in England, it is believed, results nut 
 from the fact, as is supposed, that there is but one Court 
 of Chancery, whose jurisdiction embraces the whole king- 
 dom, but because the records remain in the Court in which 
 they originate, and from the confusion that would arise 
 if the same subject were litigated, by the same parties, at 
 the same time and in different Courts. The principle 
 equally applies to Courts of common law. A scire facias 
 to revive a suit or a judgment can only issue from the 
 Court in which the suit was brought, or the judgment 
 rendered; because in such Court is the record. Bingh." 
 on Judg. 127; 2 Arch. Prac. 98. . If bills of revivor, thus 
 brought, were sustained, bills of review, bills to impeach 
 a decree for fraud, and the various modifications of bills 
 not original, would rest on the same principle; and in- 
 stead of that unity of proceeding, so favorable to the ends 
 of justice, the greatest confusion would inevitably ensue. 
 
 (162)
 
 XOA^EMBER TERM, 1831. 393-394 
 
 Arnold and Others v. Styles and Others. 
 
 The complainants further contend, that as the land is now 
 in the county of Union, and the parties reside in it, juris- 
 diction attaches to its Circuit Court. A Court of chan- 
 cery acts in personam or in rem. It is immaterial by which 
 it gains jurisdiction; once exercised, neither a change of 
 county boundaries, nor a change of the residence of a 
 party litigant, can arrest the prosecution of a suit. The 
 Court has always jurisdiction to carry its own decrees 
 into execution. It therefore follows, that if the decree 
 of the Franklin Circuit Court be revived, it must be done 
 in that Court. 
 
 The answer is clearly insufficient. The bill is to revive 
 a decree. The decree, until reversed, is conclusive. It 
 can not collaterally be questioned. If the decree was ob- 
 tained by fraud, it may be impeached on that ground. 
 This is done by a bill. The defendant by an answer to a 
 bill of revivor can not question the justice of the decree. 
 2 Madd. Ch. 403. The answer then was not a response 
 to the bill. "When an insufficient answer is filed (exclu- 
 sive of its reference for impertinence or scandal), 
 [=^394] there is but one mode of objecting to it; "^that is, 
 by taking exceptions. Mitf. PL 250. The com- 
 plainants, however, have demurred to the answer, and as 
 causes of demurrer state, 1st, that the answer sets up no 
 matter of defeuoe that amounts to a bar to the relief 
 sought by the bill; 2d, that there is no matter set up by 
 the said answer that requires a replication thereto. These 
 causes of demurrer may perhaps be regarded as excep- 
 tions taken to the answer. This would accord with the 
 liberal practice of a Court of chancery. Exceptions are 
 required to be specific. These causes of demurrer are 
 general. "Whether they are sufficient to require a better 
 answer, it is thought unnecessary to decide. There is an 
 obvious want of jurisdiction in the Union Circuit Court. 
 For this reason, the judgment must be affirmed. 
 
 Per Curiam. — The decree is affirmed with costs. To be 
 certified, &c. 
 
 (463)
 
 394-395 SUPREME COURT OF INDIANA. 
 
 Pugh V. Bussel. 
 
 Perry, for the plaintiffs. 
 Rariden, for the defendants. 
 
 Pugh v. Bussel. 
 
 Insolvency — Discharge in Foreign State. — A., having become indebted 
 
 to B. in the state of Ohio where they both resided, gave his note to B. for 
 
 ' the debt dated in 1821. In 1823, the parties being still residents in Ohio, 
 
 A. took the benefit of the insolvent law of that state, and was discharged, 
 so far as respected arrest and imprisonment, from all his debts, that of' 
 
 B. among the rest. Afterwards, A. removed to this state ; and, to an ac- 
 tion against him on the note, brought by C, the assignee of B., he pleaded 
 — in discharge of his j^erson from arrest or imprisonment for the debt — 
 his above-mentioned discharge in Ohio. Held, on general demurrer, that 
 the plea was good (a). 
 
 Bankruptcy — State Rigwits. — Until congress exercise the right of passing 
 uniform laws on the subject of bankruptcy, any state may enact a bank- 
 rupt law not impairing the obligation of contracts. 
 
 Same — Retroactive. — A state law merely discharging the person of the 
 debtor from imprisonment, not his after-acquired property, for debts con- 
 tracted in the state between its citizens, is constitutional, whether the 
 debt was contracted before or after the passage of the law. But if the 
 law discharge the debtor's after-acquired property as well as the person, 
 a discharge under it is not valid, unless the creditor make himself a 
 party to the proceedings which lead to the discharge. 
 
 Same — State Law — Effect in Foreign State. — A discbarge, by a state 
 law, has no operation out of the state over contrffcts not made and to be 
 carried into effect witHin the state ; nor over the citizens of other states, 
 who do not make themselves parties to the proceedings under the law. 
 
 Same. — A discharge under an insolvent law, of the person and not of after- 
 acquired property, may be pleaded in discharge of the person from 
 
 [■395] imprisonment; and the ■■■judgment for the plaintiff, if the plea be 
 supported, is, that he recover his debt, &c., to be levied not on the 
 person of the defendant, but only on his property. 
 
 ERROR to the Rash Circuit Court. — This cause was 
 submitted to the Court at the Nov, term, 1830, when the 
 judgmeut of the Circuit Court was reversed. A'^ide the 
 opinion, aute, p. 366. A re-hearing was afterwards 
 
 (a) Infra 366, 
 
 (464)
 
 NOVEMBER TERM, 1831. 395 
 
 Pugh V. Bussel. 
 
 granted; and, at the present term, the following opinion 
 in the cause was delivered. 
 
 Stevens, J. — This is an action of debt brought by Bus- 
 sel against Pugh, in the Rush Circuit Court, on a note 
 made by Pugh on the 1 1th day of August, 1821, to one John 
 Jackson, and by Jackson transferred by assignment in 
 writing, on the 16th day of December, 1829, to Bussel. 
 Pugh pleads, in discharge of his body from imprisonment 
 or arrest for said debt, a discharge obtained by him in the 
 county of Hamilton and state of Ohio, by the Court of 
 Common Pleas of that county under the insolvent laws 
 of that state, on the 18th day of August, 1823. The plea 
 avers the filing of his petition and schedule of debts ; the 
 appointment of trustees, and the surrender of his effects 
 to the trustees according to law; and that the trustees 
 gave bond and took upon themselves the office of trustees 
 according to law; and that such proceedings were duly 
 and legally had upon such petition and schedule, that the 
 Court of Common Pleas on the 18th day of August, 1823, 
 ordered and adjudged "that the person of the said peti- 
 tioner be henceforth privileged from imprisonment, for 
 any debt due and owing by him at the time of filing his 
 petition." The plea further avers that his discharge still 
 remains of record in said Court of Common Pleas unre- 
 versed and in full force; and makes the proper reference 
 to the record; and states that the said discharge took 
 place after the note in question was made, and after it 
 became due and payable, and long before Jackson had 
 sold or transferred it to Bussel. The plea further avers 
 that, at the time the debt was contracted and the note 
 given, and at the time of the discharge, he and Jackson 
 were both citizens of and resided in the county of Ham- 
 ilton, and state of Ohio; and that the debt was contracted 
 and the note made and delivered to Jackson there. The 
 plea further avers that his body was discharged from im- 
 prisonment under or by virtue of the note or claim of 
 Jackson ; and that Jackson, as one of his creditors, be- 
 Voi. II.— 30 (465)
 
 395-396 SUPREME COURT OF INDIANA. 
 
 ir'ugh V. Bussel. 
 
 came and was entitled to his distributive share of 
 [*396] the estate so assigned to the trustees. *The plea 
 is demurred to and the demurrer sustained bj* the 
 Court; and thereby several questions are raised. 
 
 The first point is, are those insolvent state laws repug- 
 nant to that part of the federal constitution which vests 
 exclusively in congress the power of establishing uniform 
 laws on the subject of bankruptcy throughout the United 
 States? 
 
 The provisions of the constitution which have a bear- 
 ing on this point have been by a celebrated and learned 
 jurist collated, and read thus: "Congress shall have 
 power to coin money, regulate the value thereof and of 
 foreign coin; but no state shall coin money, emit bills of 
 credit, or make anything but gold and silver coin a 
 tender in payment of debts, or pass any law impairing 
 the obligation of contracts, but congress may establish 
 uniform laws on the subject of bankruptcies." By this 
 collation and transposition it is at once seen that the con- 
 stitution has left nothing unfinished. It prohibits the 
 states from impairing the obligation of contracts, and 
 provides a uniform medium for the payment of debts, 
 and expressly prohibits the states from interfering with 
 that medium. It also provides a uniform manner of dis- 
 charging debts without payment, when congress shall 
 deem it expedient to legislate on the subject. The states 
 are not excluded from any power antecedently possessed 
 by them, except in three cases: 1, when a power is 
 granted to congress in exclusive terms; 2, when the states 
 are expressly prohibited from exercising it, in express 
 terms and in a specific form ; 8, where a power is granted 
 to congress, the cotemporaneous exercise of which by the 
 states would be incompatible. The point now under con- 
 sideration does not fall under either of those heads. The 
 power of congress to establish " uniform laws on the sub- 
 ject of bankruptcy," as given b}^ the constitution, is not 
 exclusive of the states on the same subject, and until con- 
 
 (466)
 
 NOVEMBER TERM, 1831. 396-397 
 
 Pugli V. Bussel. 
 
 gress exercises that right, the states may constitutionally 
 pass such laws, if they do not impair the obligation of 
 contracts. And even if congress had exercised that right, 
 the right of the states is not thereby extinguished, but 
 only suspended so far as the two laws might conflict. It 
 is said in the case of Ogden v. Saunders, 12 Wheaton, 369, 
 that the fair exercise of that power by the states, does 
 not necessarily involve a violation of the obligation of con- 
 tracts, unless they pass beyond their own limits and 
 the rights of their own citizens, and act upon 
 [*397] *the rights of the citizens of other states, and come 
 in collision with the judicial power granted to the 
 United States, and thereby render their acts incompati- 
 ble with the rights of the other states, and with the con- 
 stitution of the United States. From this view" of the case, 
 it is clearly demonstrated that those laws are not neces- 
 sarily repugnant to that part of the constitution, vesting 
 in congress the exclusive power to establish uniform laws 
 on the subject of bankruptcy. 
 
 The second point is, do those laws "impair the obliga- 
 tion of contracts," the power of passing which is expressly 
 vested in congress? 
 
 The obligation of a contract is the law which binds the 
 parties to perform their agreement. The Institutes and 
 Pothier both call the obligation of a contract " the chain 
 of the law." That law is the municipal law of the state 
 where the contract is made, or where it is to be per- 
 formed ; and must govern it throughout whenever its 
 performance is sought to be enforced. Lord Mansfield 
 says, the general rule established by comity and the laws 
 of nations, is, that the lex loci forms a part of the contract, 
 and travels with it wherever the parties to it may be 
 found, and is to be considered in expounding and enforce- 
 ing it, unless the parties have otherwise agreed; as where 
 it is to be executed in another state or country; in which 
 case it is to be governed by the laws of the place where it 
 is to be executed. 1 H. Black. 584; 2 Burr. 1078 ; Stra. 
 
 (467)
 
 397-398 SUPREME COURT OF INDIANA. 
 
 Piigh V. Bussel. 
 
 733; Black. Rep. 234, 258; Dallas, 360; 1 Gallison, 169, 
 Mather v. Bush, 15 Johns. Rep. 233, 249. It is now a 
 settled doctrine in all Courts, that the discharge of an in- 
 solvent from arrest and imprisonment only, is an infringe- 
 ment of the obligation of the contract. The imprisonment 
 of the person of the debtor is no part of the law of the 
 contract, but is simply a means of coercion : hence, those 
 laws that only release the body of the insolvent from 
 arrest and imprisonment are constitutional and valid. 
 And it is also equally well settled, that a discharge of the 
 insolvent's after-acquired property, is an infringment of 
 the obligation of the contract, and those state laws which 
 release not only the body of the insolvent, but also his 
 after-acquired property, are law^ impairing the obligation 
 of contracts, and are unconstitutional and void. 
 
 In the case of Baker v. Wheaton, 5 Mass. Rep. 
 [*398] 509; Smith v. "^ Parsons, 1 Ohio Rep. 236; Smith v. 
 Smith, 2 Johns. Rep. 241; it is held that if the 
 contract be made in the state where the discharge is had, 
 between citizens of the state at the time of making the 
 contract, it is good in all places against the citizens of that 
 state and in all countries, because the laws of the state 
 form a part of the contract, and the parties being citizens 
 thereof, are bound by the laws, they having assented 
 thereto as a part of the body politic. Again, in the cases 
 o^ Mather V. Bush, 16 Johns. Rep. 233; Blanchard v. Rus- 
 sell, 13 Mass. Rep. 1 ; Hicks v. Hotchkiss et al. 7 Johns. Ch. 
 Rep. 297; it seems to be considered that if the insolvent 
 law, under which the debtor is discharged, is not made 
 and in force at the time of making the contract, it forms 
 no part of the contract. It is, however, now settled by 
 the cases of Sturges v. Crou))nnshiel(l, 4 Wheaton; Qgrlen v. 
 Saunrfers,12 Wheaton ; 3I\Millan v. M'Neill, 4 Wheaton ; 
 Mason v. Haile. 12 Wheaton ; that a state law that dis- 
 charges only the person of the debtor from arrest atid im- 
 prisoimient, and not after-acquired property, for debts 
 contracted in the state between its own citizens, to be paid 
 
 (468)
 
 KOVEMBER TERM, 1831. 398-399 
 
 Pugh V. Bussel. 
 
 or performed in the state, is coustitutioual aud valid, 
 whether the debt was contracted before or after the pas- 
 sage of the insolvent law. The circumstance of the act 
 being passed before or after the contract is made, makes 
 no difference. And in the case of Clay v. Smith, 3 Peters, 
 411, and Sturges v. Croivninshield, it appears to be consid- 
 ered that a state insolvent law, which discharges not only 
 the person of the debtor from imprisonment, but also dis- 
 charges after-acquired property, is valid, if the creditor 
 makes himself a party to the proceedings which lead to 
 the discharge in the state Court. 
 
 In surveying this doctrine in all its parts, and in en- 
 deavoring to arrive at a conclusion, warranted by the 
 peculiar situation in which the several states stand in re- 
 lation to the federal government, it is necessary to keep 
 constantly in view that the federal constitution is the 
 paramount law of each state, and forms a part of the lex 
 loci, and therefore enters into and forms a paramount 
 part of every contract, and is equally binding and valid 
 in every state. In a case in 7 Johns. Ch. Rep. Chancellor 
 Kent says, that the lex loci must be constitutional law, or 
 it is no law and forms no part of the contract ; that -the 
 constitution of the United States is the supreme law of the 
 
 land of all the states, and forms a part of all con- 
 [^^399] tracts made in any part of the United *States; 
 
 and that any local law repugnant to the constitu- 
 tion can form no part of the same contract. And, again, 
 in the case of the Farmers' and Mechanics' Bank of Penn- 
 sylcania v. Smith, 6 Wheaton, 131, Judge Marshall says, 
 that the circumstance of the parties being citizens of the 
 same state, and the insolvent laws having been made and 
 in existence prior to the making of the contract, and the 
 discharge having taken place in the same state in the 
 Courts thereof, makes no difference ; that the constitution 
 of the United States was made for the whole people of 
 the Union, and is equally binding upon all the Courts and 
 all the citizens. 
 
 (169)
 
 399-400 SUPREME COURT OF I:N^DIA]S'A. 
 
 Pugh V. Biissel. 
 
 The result of all the foregoing cases is, that a state law 
 discharging the person of the debtor from imprisonment 
 only, and not his after-acquired effects, for debts contracted 
 in the state between its citizens, is constitutional and valid, 
 whether the debt was contracted before or after the pas- 
 sage of the lawo And that a state law, discharging not 
 only the person of the debtor from imprisonment, but also 
 discharging his after- acquired propert}', is a law impair- 
 ing the obligation of contracts, and a discharge under it 
 is not valid, unless the creditor makes himself a party to 
 the proceedings which lead to the discharge in the state 
 Court. 
 
 The third point is, have those state laws any operation 
 out of the state over contracts not made and to be carried 
 into effect in the state between the citizens thereof; or 
 have they any effect or operation on the citizens of other 
 states ? 
 
 The Courts in England maintain the doctrine that it is 
 a rule of universal obligation that the assignment of the 
 bankrupt's effects, under a law of the country of the con- 
 tract, is binding everywhere. It is perhaps settled in that ' 
 country that the discharge of a bankrupt shall be effectual 
 against contracts of the state that gave the discharge, no 
 matter what be the allegiance or country of the creditor. 
 Their doctrine is, that the bankrupt law of the country 
 is paramount in disposing of the rights of the bankrupt. 
 The United States appear to have established a different 
 doctrine. In the federal as well as the state Courts, where 
 • such cases have been adjudicated, it has been decided that" 
 \ notwithstanding the bankruptcy of the debtor in Eng- 
 land, or other foreign couutr3% by their laws, his creditor 
 here may levy an attachment on a debt due to the 
 [*400] bankrupt in this ^country and appropriate it to 
 his own use. And further, our Courts give the 
 debts due to the bankrupt here, to satisfy a debt con- 
 tracted in England, to the prejudice of the English law, 
 which gives the same debt to the assignees of the bank- 
 
 (470)
 
 NOVEMBER TERM, 1831. 400 
 
 Pugh v. Bussel. 
 
 rupt. Ogden v. Saunders, 12 Wheatou, 360 ; Harrison v. 
 Sterry, 5 C ranch, 298, 302. 
 
 In the case of M' Millan v. JPNeill, 4 Wheaton, 209, 
 Judge Marshall says, that it is well settled that a discharge 
 under a foreign law is no bar to an action on a contract 
 made in this country. And in the case of Buckner v. Fin- 
 ley andF"rt?i Lear, 2 Peters. 590, the Court says that "for 
 all national purposes embraced by the federal constitution, 
 the states and the citizens thereof are one, united under 
 the same sovereign authority, and governed by the same 
 laws ; but that in all other respects, the states are neces- 
 sarily foreign to, and independent of, each other." The 
 same is said by the Court of Appeals in Virginia in the 
 case of Warder V. Arell, 2 Wash. 298, where the Court states 
 the law as it respects a foreign country, and then adds, 
 " the same principle applies to the different states of 
 America." This principle, says Judge Baldwin, in the 
 case of Woodhidl and Davis \. Wagner, seems directly ap- 
 plicable to the insolvent laws of the states. Such laws 
 a,re wholly unconnected with the federal relations of the 
 states to the general government, where they do not im- 
 pair the obligation of contracts; and discharges under 
 them are, in other states, to be considered as made under 
 foreign laws and subject to the same rules of decision. 
 In the cases of Watson v. Bourne, 10 Mass. Rep. 337 ; Baker 
 V. Wheaton, 5 Mass. 509; Van Raugh v. Van Arsdaln, 3 
 I^ew York, T. R. 154; Smith v. Smith, 2 Johns. Rep. 241 ; 
 Ogden v, Saunders, 12 Wheaton, 213, it is settled that a 
 discharge of a debtor undjr n state insolvent law is not 
 valid against a citizen or creditor of another state, they 
 not being parties or assenting to the laws. And, in the 
 cases of Emory v. Grenough, 3 Dallas, 369, and Proctor v. 
 Moore, Williams' Rep. 198, it is decided that if two citi- 
 zens of the same state contract under the insolvent laws 
 of the state, and, after the contract is made, one of them 
 remove to another state, the one remaining in the state 
 where the contract is made can not be discharged there- 
 
 (471)
 
 400-401 SUPREME COURT OF INDIANA 
 
 Pugh V Bussel. 
 
 from by the insolvent laws of the state, the other being a 
 
 citizen of another state, 
 [*401] *These cases, together with the cases of Shaw v. 
 Hobhins, note to 12 Wheaton, 369 ; M'Millan v. 
 McNeill; Ogden v. Saunders; Harrison v. Sterry, and Rob- 
 inson's Admr. v. Bank of Georgetown^ established the 
 doctrine beyond a controvers}^, that a discharge by a state 
 law operates only on contracts made in the state between 
 its own citi-zens, which are to be executed there; and that 
 such laws have no operation out of the state, over contracts 
 not made and to be carried into effect within the state, 
 nor over the citizens of other states, unless they volun- 
 tarily make themselves parties to the proceedings which 
 lead to a discharge in the state Courts. 
 
 The fourth and last point made in the case is, can the 
 debtor when he has been constitutionally discharged in 
 his own state under the laws thereof, plead that dis- 
 charge in another state as a defence in bar against the 
 imprisonment of his body, to an action brought on a debt 
 from which he has been so discharged ; and if he can so 
 plead it, what is the form of the judgment to be rendered 
 thereon ? 
 
 In the cases of Baker v. Wheaton, Smith v. Parsons, and 
 Watson v. Bourne, and the case of Babcock v. Weston, 1 
 Gall. Rep. 168, it is held to be a settled principle, that a 
 legal discharge once obtained between citizens of the same 
 state, is valid and binding in every state in the Union, on 
 general principles ; and much more so under the federal 
 compact. These decisions on this point have, we believe, 
 never been called in question. The Court is of opinion 
 that the discharge now in question, of the debtor in the 
 state of Ohio, is valid between the defendant and- Jack- 
 son, and that the assignment ot the note to Bussel does 
 not altar or affect the case ; and that therefore the plea of 
 the defendant is well pleaded. In England, the}' have an 
 insolvent law called the Lord's act, which discharges the 
 person of the debtor from imprisonment, but does not dis- 
 
 (472)
 
 NOVEMBER TERM, 1831. 401-402 
 
 Pugh v. Bussel. 
 
 charge his after- acquired property. Under that act such 
 pleas are common, and the form thereof well settled. See 
 2 Chitty's Pleading, 356,357. The judgment in such cases 
 is, that the plaintiff recover of the defendant his debt, 
 damages, and costs, to be levied, not on the person of the 
 defendant, but on his goods and chattels, lands and tene- 
 ments. Bingham on Judgments and Executions, 328,329. 
 Per Curiam. — The judgment is reversed with costs. 
 
 Cause remanded, &c. (1). 
 [*402] "^Smith, for the plaintiff. 
 
 Bariden, for the defendant. 
 
 (1) The subjects, to which the opinion in the text relates, and the author- 
 ities connected with tiiem, are very fullv examined in Kent's Commentaries, 
 2d ed. 1 vol. pp. 419 to 423; 2 vol. pp." 389 to 408. 
 
 The language of Judge Story, as to the authority of the states to pass in- 
 solvent laws discharging the obligation of contracts, is as follows : " It is 
 not doubted, that the states may pass insolvent laws, which shall discharge 
 the person, or operate in the nature of a cessio bonoruin, provided such laws 
 do not discharge, or intermeddle with the obligation of contracts. Nor is 
 it denied, that insolvent laws, which discharge the obligation of contracts, 
 made antecedently to their passage, are unconstitutional. Sturges v. Crown- 
 inshield, 4 Wheat. R. 122 ; Fanners and Mechanics^ Bank v. Smith, 6 Wheat. 
 R. 131 ; Ogden v. Saunders, 12 Wheat. R. 213. But the question is, how far 
 the states may constitutionally pass insolvent laws, which shall operate 
 upon and discharge contracts, which are made subsequently to their pas- 
 sage. After the most ample argument it has at length been settled by a 
 majority of the Supreme Court, that the states may constitutionally pass 
 such laws operating upon future contracts. Ogden v. Sauuders, 12 Wheat. 
 R. P. 254 to 357." 3 Story's Comm. 252. 
 
 Respecting the contracts to which such state insolvent laws can right- 
 fully apply, the same distinguished writer says : " The result of the various 
 decisions on this subject is, 1. That they apply to all contracts made within 
 the state between citizens of the state. 2. That they do not apply to con- 
 tracts made within the state between a citizen of a state and a citizen of 
 another state. 3. That they do not apply to contracts not made within the 
 state. In all these cases it is considered that the state does not possess a 
 jurisdiction, co-extensive with the contract, over the parties ; and therefore, 
 that the constitution of the United States protects them from prospective, 
 as well as retrospective legislation. Ogden v. Saunders, 12 Wheat. R. 358 ; 
 M\Millan v. 3['XeiU, 4 Wheat. R. 209. 'Still, however, if a creditor volun- 
 tarily makes himself a party to the proceedings under an insolvent law of 
 a state, which discharges the contract, and accepts a dividend declared un- 
 der such law, he will be bound by his own act, and be deemed to have 
 abandoned his extra-territorial immunity. Clay v. Smith, 3 Peters' Rep. 
 411." 3 Storv's Comm. 256. 
 
 (473)
 
 402-403 SUPREME COURT OF mDIANA. 
 
 Wilson I. Coles. 
 
 Wilson v. Coles. 
 
 Practice — Appearance — Waiver. — After a cause had been continued, 
 the parties appeared during the same term and proceeded to trial. This 
 was held not to be erroneous. The proceeding to trial, which must be 
 presumed to have been by consent, cancelled the previous order of con- 
 tinuance (a). 
 
 Record — Affidavit. — Neither an affidavit for a continuance, nor any ob- 
 jection of a party to the ordering on a cause for trial, is any part of the 
 record unless made so by a bill of exceptions (6). 
 
 ERROR to the Allen Circuit Court. 
 
 Blackford, J. — Trespass by Wilson against Coles. Plea, 
 the general issue. Verdict and judgment for the 
 [*403] defendant. *The record states that this cause 
 was continued on the 10th of November, 1828; 
 and that, on the next day, the parties appeared by their 
 attorneys, and for trial put themselves upon the country. 
 It further appears that a jury was impaneled, and that 
 a verdict and judgment were rendered for the defendant. 
 
 There is no error in these proceedings. Although the 
 cause had been continued, the parties might afterwards, 
 if they chose, proceed to trial. Their proceeding to trial 
 cancelled the previous order of continuance. The plain- 
 tift' relies for a reversal of the judgment on his having 
 been entitled to the continuance, in consequence of an 
 affidavit alleged to have been made on his behalf, and on 
 his having objected to the cancelling of the order of con- 
 tinuance. These grounds of error, however, do not ap- 
 pear of record. The affidavit and the objection to the 
 proceeding to trial, alleged to have been made for the 
 plaintiff, could onl}' be shown by a bill of exceptions. 
 The transcript of the record, to be sure, contains the copy 
 of an affidavit for a continuance made on the part of the 
 plaintiff, together with a statement that he objected to 
 proceeding to trial after the order of continuance, and 
 
 (a) GO Tnd. 158 ; 57 Id. 559 ; 43 Id. 357! 
 (6) 16 Ind. 476; 50 Id. 270; 19 Id. 130. 
 
 (474)
 
 NOVEMBER TERM, 1831. 4^o-404 
 
 Jaques v. The Board of Commissioners of Vigo Couuty, 
 
 that he tendered a bill of exceptions to the opinion of the 
 Court ordering on the trial, which the Court refused to 
 seal. These circumstances, however, are only the state- 
 ments of the clerk, and constitute no part of the record. 
 As the case is presented to us, we must consider that the 
 Court correctly permitted the cause to proceed after the 
 order of continuance ; and that the trial took place by con- 
 sent of the parties. The judgment must, therefore, be 
 affirmed. 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Cooper, for the plaintiff. 
 Rariden, for the defendant. 
 
 Jaques v. The Board of Commissioners of Vmo County. 
 
 Waiver of Written Agreement by Parol, — A. having obtained a judg- 
 ment against a county, purchased, under an execution on the judgment, 
 a number of town lots belonging to the county. Afterwards, at a public 
 • sale of these lots by the county, B. bought one of them for a small sum 
 with notice of the previous sale, paid the purchase-money, took a receipt 
 for the same, and entered into possession. A. died, and the county 
 
 [*404] made a compromise *with his heirs, who released their interest in 
 the said lots to the county, on receiving back the purchase-money 
 paid by A.; the purchasers at the said public sale, B. among the rest, 
 agreeing by parol to release their interest in the lots to the county on be- 
 ing re-paid their purchase-money. The county tendered to B. his pur- 
 chase-money for the lot he had bought, which he refused to accept ; and 
 he refused also to execute the release. C. afterwards, with B.'s knowledge 
 and without any objection by B., purchased the last-named lot of the 
 county, and received a deed from the county for the same. A bill in 
 chancery, filed by B. against the county to obtain a title for the lot thus 
 bought by C, was dismissed for want of equity. 
 
 M'KiNNEY, J. — This is a suit in equity for the specific 
 performance of a contract to conve}^ land. It has been 
 transferred from the Vigo Circuit Court previous to a 
 decree, the President Judge having been engaged as 
 counsel in the cause. 
 
 (475)
 
 404-405 SUPREME COURT OF INDIANA. 
 
 Jaques v. The Board of Commissioners of Vigo County. 
 
 The complainant alleges that he purchased of the de- 
 fendants lot 132 in the town of Terre Haute, the pay- 
 ment of the purchase-money, and the refusal of the de- 
 fendants to execute a quit-claim deed, agreeably to the 
 terms of the sale; that, by consent of the defendants, 
 he took possession of the lot and made improvements 
 thereon ; and prays specific performance. The defend- 
 ants, in their answer, admit the sale and payment of the 
 purchase-money. They, however, introduce new matter 
 which the complainant is called upon to answer. They 
 charge that complainant, prior to his purchase of the lot, 
 knew that it and others belonging to the county of Vigo, 
 had been sold under an execution, issued on a judgment 
 against the county in favor of John Brocklebank; that 
 they were purchased by him, and that deeds were exe- 
 cuted; that after the sale to complainant, by an agree- 
 ment between the defendants and the executor and heirs 
 of Brocklebank, the latter released to the county their 
 interest in said lot and others purchased under the said 
 judgment, on receiving fi'om the county the purchase- 
 money which had been paid for the same. They further 
 charge that they would not have entered into the agree- 
 ment with the heirs of Bi'ocklebank had not the com- 
 plainant and others who had purchased lots at the time 
 complainant did, agreed that if the defendants entered 
 into that agreement, an assignment of their interests in 
 the lots should be made, on receiving back the purchase- 
 money which had been paid; that this was done to enable 
 the county to secure a good title to the lots; that the 
 agreement has been complied with by all the parties ex- 
 cept the complainant, by releases executed and 
 [*405] '"'payment of the pui'chase-money ; that- the com- 
 plainant has refused to receive the purchase- 
 money, it having been tendered, or to release his interest 
 to the lot; that he did not refuse to release his interest 
 until after the heirs of Brocklebank had released to the 
 county; that since the release by the said heirs, the de- 
 
 (476)
 
 NOVEMBER TERM, 1831. 405 
 
 Jaques v. The Board of Commissioners of Vigo County 
 
 fendaiits have sold the lot to one Ross, and executed a 
 warranty deed for the same ; that the sale was made to 
 Ross, with the knowledge of the complainant and with- 
 out any objection being made by him. The complainant, 
 in his answer to the new matter, admits his knowledge 
 of the purchase of the lot by Brocklebank, but says he 
 did not believe it valid; denies that he agreed to assign 
 his interest to the county, on condition that the heirs of 
 Brocklebank released their interest; denies knowledge 
 of such release being made except from hearsay; denies 
 the tender of the purchase-money. The depositions fnlly 
 support the defensive matter charged in the defendant's 
 answer. 
 
 The case presents a single queston : Is the agreement 
 by the complainant, to assign his interest in the lot in 
 controversy, obligator}^ upon him ? It is contended that 
 it is by parol, without consideration, and consequently 
 void. If this were so, it is clear that it would be inop- 
 erative. A view of the case, it is thought, will warrant a 
 different conclusion. The lot was owned by the county 
 of Yigo. It had been sold on an execution against the 
 county. The complainant afterwards purchased it on a 
 sale for taxes. He held a tax-title. The validity of his 
 title had not been established. He had purchased with a 
 knowledge of the prior sale. The defendants and the 
 representatives of the purchaser under the execution en- 
 tered into an agreement, by which the latter released to 
 the county their interest in that and other lots purchased 
 under the execution, upon having refunded by the county 
 the money paid for them. This agreement was entered 
 into by the defendants on condition that the complainant, 
 and others who had purchased lots at the time of com- 
 plainant's purchase, should also release their interests in 
 the lots to the county, upon re-payment of the purchase- 
 mono}'. To this agreement the complainant was a party. 
 The defendants were unwilling to refund to the heirs of 
 Brocklebank the purchase-money of the lots, unless the 
 
 (477)
 
 405-406 SUPREME COUET OF mDIANA. 
 
 Jaques r. The Board of Commissioners of Vigo County. 
 
 subsequent purchasers would release their interest. They 
 agreed to do so, upon receiving the money they 
 [*406] had paid. The title of the *county would thus 
 become perfect. The agreement appears to have 
 been executed by all except the complainant. Having in- 
 duced the defendants by his agreement to release, to re- 
 pay to the heirs of Brocklebank the purchase-money of 
 the lots, and having acquiesced in a sale since made by 
 the defendants of the lot, it would surely be contrary to 
 every principle of justice that he should now be permit- 
 ted to enforce a title. The defendants have complied with 
 their^ agreement. They tendered the purchase-money, 
 and It was refused. A conveyance now decreed to the 
 complainant relieves him from a struggle with a prior 
 title. It enables him to take advantage of his own wrong. 
 This the law does not permit, nor does it regard fraud as 
 the subject of its favor. 
 
 We have not had before us the written agreement, 
 which it is said can not be waived. It appears that a re- 
 ceipt was given to the complainant. Its terms, however, 
 do not appear. A mere receipt for money will not, of it- 
 self, constitute a right to the specific performance of a 
 contract for the conveyance of land. Ellis v. Deadman's 
 heirs, 4 Bibb, 467 ; Sugd. on Ven.. 46. If the receipt con- 
 tamed the terms of the agreement, it is clear its perform- 
 ance has been waived by the complainant. That an agree- 
 ment in writing may be waived by parol is well estab-- 
 hshed. Boisfordv. Burr, 2 Johns. Ch. Rep. 405; Sugd'' 
 on Ven. 97; Rob. on Frauds, 89; Price v. Dyer, 17 Ves 
 .356; Lucas v. 31itchell, 3 Marsh. 245 (1). The sale ofthe 
 lot to Ross by the defendants, without objection on the 
 part of the complainant, shows the light in which he 
 viewed the agreement he had entered into. Had he 
 deemed his title subsisting, it may well be supposed he 
 would have made it known and resisted the sale. He 
 liowever, remains silent. If such conduct, a fraud upon 
 Ross, would have enabled him to enforce a conveyance, 
 
 (478)
 
 NOVEMBER TERM, 1831. 406-407 
 
 Tolen I'. Tolen. 
 
 the defendants in resisting the present claim should suc- 
 ceed. That Ross could have enforced a title, it is thought, 
 is clear. Wendell v. Van Renssellaer, 1 Johns. Ch. Rep. 
 344; Daiin v. Spurrier, 7 Ves. 231. 
 
 If this bill were sustained, and a decree granted agree- 
 ably to its prayer, the principle of equity would be re- 
 versed, which requires a party who invokes its aid to ap- 
 pear with clean hands, and a triumph afforded to fraud. 
 
 The bill must be dismissed with costs. 
 [*4071 *Per Curiam.— The bill is dismissed with costs. 
 Cone, for the complainant. 
 
 Farrington, for the defendants. 
 
 a) \ parol waiver and abandonment of an agreement duly signed, may 
 be set up as a defence to a bill for specific performance; but the circum- 
 stance. um=£ bo such as to evince an intention in the parties that there 
 should be a total dissolution of the contract, placing them in the same sit- 
 uation in which thev stood before the agreement was entered into. Eobm- 
 son V. Page, 3 Kuss. 114 ; 2 L. L. M. 698. 
 
 Tolen v. Tolen. 
 
 Divorce— Jurisdiction of Foreign Party.— Petition by a wife for a di- 
 vorce. The marriage was solemnized in Kentucky, where the parties 
 then resided. The husband there, in 1822 or 182.3, deserted his wife, and 
 has ever since lived in adultery with another woman. Two or three 
 years after the desertion, the wife removed to this state, where she has 
 since that time resided. The husband was never resident here ; and the 
 notice to him of the pendency of this suit was by publication. Held, that 
 the Circuit Court, under the statute, has jurisdiction of the cause (a). 
 
 Constitutional Law— Obligation of Contracts.— The constitutional 
 provision, prohibiting laws impairing the obligation of contracts, does 
 not extend to general laws authorizing divorces; provided the legislature, 
 in the exercise of its power, does not pass beyond the rights of its own 
 citizens, and act upon the rights of the citizens of other states. 
 
 Divorce— Lex Domicilii.— In a suit for a divorce, the lex domicilii is the 
 rule of decision. 
 
 ERROR to the Decatur Circuit Court. 
 
 Stevens, J.— The plaintiff filed her petition in the Pe- 
 
 (a) 10 Ind. 436; 24 Id. 35.5. 
 
 (479)
 
 407-408 SUPREME COURT OF INDIANA. 
 
 Tolen I. Toleu. 
 
 catur Circ'iit Court prajnng a divorce from her husband, 
 the defendant ; by which it appears they were married in 
 the state of Kentucky, where they both resided, and that 
 they continued to reside there as man and wife, after their 
 marriage, until in the year 1822 or 1823, when the defend- 
 ant eloped with an adulteress, with whom he has ever 
 since lived, and by whom he has had five or six children; 
 that two or three years after the elopement, the plaintiff 
 removed to the state of Indiana and permanently settled 
 in the county of Decatur, where she has resided for the 
 last five years. The Circuit Court decided that they had 
 no jurisdiction of the case, because the marriage and 
 causes of divorce both took place in the state of Kentucky, 
 and the defendant has never resided in this state. 
 
 A more unsettled question could not perhaps be pre- 
 sented to the Court. It has been more or less 
 [*408] discussed in the Courts of '^Europe and America 
 for many years, and many of the decisions are ap- 
 parently conflicting. Divorces are of two kinds, a mensa 
 et thoro and a vinculo; and the causes of divorce are as 
 different and various as there are diflerent states and gov- 
 ernments. By the civil law, either party might renounce 
 the marriage union at pleasure. Justinian for a short 
 time abolished divorces, but was compelled to revive them 
 again. He restored the unlimited freedom of divorce, 
 and gave as a reason that the hatred, miser}-, and crimes, 
 w^hich often flowed from indissoluble connections, re- 
 quired that marriages should be subject to dissolution by 
 mutual will and consent. By the ecclesiastical law, a 
 marriage may be dissolved and declared void ab initio, for 
 canonical impediments existing previous to marriage. In 
 the Roman Catholic states, heretofore, divorces were not 
 allowed, because marriage was co'nsidered by them a sacra- 
 ment and indissoluble. The Napoleon Code admits of 
 divorces for several named causes to be pronounced by 
 the tribunals, where the parties can not agree on a disso- 
 lution, and in all cases where the parties agree thereto. 
 
 (480)
 
 NOVEMBER TERM, 1831. 408-409 
 
 Tolen I'. Tolen. 
 
 In England, a divorce a vinculo is seldom granted except 
 for adultery, but divorces a mensa et thoro are very com- 
 mon and often for very trifling causes. In some of our 
 states, divorces a vinculo are restrained by constitutional 
 provisions, which require the assent of two-thirds of 
 the legislature founded on previous judicial investigation. 
 In some, divorces are granted solely by special acts of the 
 legislature; in others, divorces a vinculo are judicially 
 granted for adultery only ; and in others, not only for adul- 
 tery but also for ill treatment, abuse, abandonment, and 
 many other causes. In our state, divorces a vinculo only 
 are granted; a divorce a mensa et thoro is not authorized. 
 The causes of divorce are, 1st, a former subsisting mar- 
 riage ; 2d, impotency; 3d, adultery ; 4th, abandonment; 
 5th, condemnation for a felony; 6th, barbarous and inhu- 
 man treatment; and 7th and lastly, "in any other case 
 where the Court in their discretion shall consider it rea- 
 sonable and proper that a divorce should be granted." 
 
 The first point is, how far the legislature of a state can 
 interfere with a marriage contract under the constitution 
 of the United States, which prohibits the states from pass- 
 ing laws impairing the obligation of contracts. , 
 
 In the case of Dartmouth, College v. Woodward, 4 
 [*409] Wheaton, *529, Judge Marshall says, " This pro- 
 vision of the constitution never has been under- 
 stood to embrace other contracts, than those which respect 
 property, or some object of value, and confer rights which 
 may be asserted in a Court of justice. It never has been 
 understood to restrict the general right of the legislature 
 to legislate on the subject of divorces. Those acts enable 
 some tribunal, not to impair a marriage contract, but to 
 liberate one of the parties, because it has been broken by 
 the other." And in the same case Judge Story says, "A 
 general law regulating divorces from the contract of mar- 
 riage, like a law regulating remedies in other cases of 
 breaches of contracts, is not necessarily a law impairing 
 the obligation of such a contract. It may be the only 
 Vol. II.— 31 (481)
 
 409-410 SUPREME COUKT OF INDIAXA. 
 
 Tolen V. Tolen. 
 
 efl'ectual mode of enforcing the obligations of the contract 
 on both sides. A law punishing a breach of contract, by 
 imposing a forfeiture of the rights acquired under it, or 
 dissolving it because the mutual obligations were no 
 longer observed, is in no correct sense a law impairing 
 the obligations of the contract." The Courtis of opinion 
 that the states, in the fair exercise of their legislative 
 powers, do not necessarily involve a violation of the 
 obligation of contracts in passing general laws authorizing 
 divorces, if they do not, in the exercise of those powers, 
 pass beyond the rights of their own citizens and act upon 
 the rights of the citizens of other states, and thereby pro- 
 duce such a conflict of the sovereign powers and collision 
 of the judicial powers of the other states, as to render the 
 exercise of such powers incompatible with the rights of 
 other states, and with the constitution of the United 
 States. We believe that all Courts and jurists agree, that 
 a divorce granted under the laws, and by the constituted 
 authorities, of the government or the state where the- 
 parties are domiciled, and where the marriage contract 
 was entered into, is valid and binding every where. The 
 great difficulty is, where the divorce is granted out of the 
 state where the marriage contract was entered into, and 
 afterwards the parties return to their native state. How 
 are the Courts of the native state to treat the foreign 
 divorce ? This brings us to the second.point in this case, 
 which is — 
 
 Does the lex loci form a part of the marriage contract, 
 or is it governed by the lex domicilii ? 
 
 In England, it is settled that no foreign Court is com- 
 petent to pronounce a divorce a vinculo of English 
 [*410] marriages, for any *cause other than- such as 
 would be warranted by the lex loci contractus. In 
 the state of New York the EngHsh doctrine is adopted, 
 and no divorce of ISTew York marriages, pronounced by 
 any foreign tribunal out of the. United States, is valid, un- 
 less it be for adultery ; that being the only cause of divorce 
 
 (482)'
 
 NOVEMBER TERM, 1831. 410 
 
 Tolen V. Tolen. 
 
 in that state. But whether a divorce, judicially granted 
 in one of these United States of a New York marriage, 
 would be entitled to a different consideration in that state, 
 has not as yet been decided. If it would, it is owing to 
 the force which the national compact, and the laws made 
 in pursuance of it, give to the records and judicial pro- 
 ceedings of other states. Lord Meadowbank, in the High 
 Court of Sessions in Scotland, in reviewing the English 
 doctrine on the subject of divorce, says that the relation of 
 husband and wife, wherever originally constituted, is 
 entitled to protection and redress by the laws of the 
 country where the parties may reside. That by marrying 
 in England, the parties do not become bound to reside 
 there forever, nor are they bound to treat each other in 
 every country according to the laws of England. That a 
 redress of a violation of the duties of the marriage state, 
 belongs to the laws of the country where the parties reside, 
 There is nothing in the will of the parties that gives the 
 lex loci any particular force over the marriage contract, oif 
 that impedes the course of the jus imhlicam in relation to 
 it. That the relation of husband and wife is acknoxyl- 
 edged jure gentium; and the right to redress wrongs in- 
 cident to that relation, exists in the laws of the countrj; 
 wherever the parties may be, though the marriage may 
 have been celebrated elsewhere. Other contracts are 
 modified by the will of the parties, and the lex loci be 
 comes essential; but not so with matrimonial rights and 
 duties. Unlike other contracts, they can not be dissolved 
 by the will and consent of those who made them. Mat- 
 rimonial contracts are juris gentium, and admit of no 
 modification by the will of the parties. Hence, it is not 
 necessary that a foreigner should have acquired a domicile 
 animo remanendi: the law of the country at once applies 
 its own rules to all domestic relations, otherwise a numer- 
 ous description of persons would be permitted to violate 
 with impunity the obligations of domestic life. That each 
 country is bound to look to its own laws in the adminis- 
 
 (483)
 
 410-411 SUPREME COURT OF INDIA:^.^. 
 
 Tolen V. Tolen. 
 
 tration of that department, otherwise the whole 
 [*411] order of society would be disjointed. If the lex Hoci 
 followed and governed the parties wherever they 
 went, it would lead to inextricable difficulties, and the 
 countr}^ would be filled with privileged castes, each living 
 under separate laws. It is immaterial where the marriage 
 was entered into, it is binding in all countries, not by 
 virtue of the lex loci, but by the law of nations. If the 
 lex loci were the ligament that continued to bind it, the 
 same law of course would have to be applied to when a 
 dissolution of it was called for; and the parties under a 
 Prussian marriage would be entitled to a divorcee/ vinculo 
 forany of the great variety of whimsical cases for which 
 a divorce is allowed by the Prussian code. This much 
 has been said for the purpose of throwing some light on 
 the subject, and from the best view which we can take of 
 the whole ground, we are of opinion that the lex domicilii 
 must govern the marriage contract, and the laws of the 
 country wherever the parties may be domiciled must be 
 applied to their domestic relations. 
 
 The third and last point in the case is, had the Circuit 
 Court jurisdiction ? 
 
 It appears from the plaintiff's own showing that the 
 marriage contract was made and entered into in the state 
 of Kentucky, where both parties resided; that the causes 
 of divorce arose there; and that the defendant does not 
 now reside, nor has he ever resided, in this state. In the 
 states of l!^ew York and Massachusetts it has been de- 
 cided that where one or both of the parties remove into 
 another state for the purpose of procuring a divorce con- 
 trary to the laws of their own state, without an absolute 
 change of domicile, such divorce is null and void, it being 
 obtained by fraud; and that the Court pronouncing such 
 decree has no jurisdiction, having been imposed upon by 
 fraud and collusion. These decisions we think are good 
 law, but can not apply to the case under consideration. 
 There is neither fraud nor collusion in this case; the 
 
 (484)
 
 NOVEMBER TERM, 1831. 411-412 
 
 Tolen I'. Tolen. 
 
 plaintift'is now and has been for several years, a bona fide 
 citizen of this state, and has acquired a domicile cuiimo re- 
 manendi, and is entitled to the benefit of the laws. The 
 statute of the state of New York only authorizes divorces 
 a vinculo in the single instance of adultery; and a bill for 
 a divorce can only be sustained for that cause in two 
 cases: one, where the married parties are inhabitants of 
 the state at the time of the commission of the adultery ; 
 the other, where the marriage is entered into in 
 [*412] the state, and the *party injured is an actual res- 
 ident at the time the adultery is committed, and 
 at the time of filing the bill. We have no such statutory 
 provisions as these, and therefore the judicial decisions of 
 that state, founded as they are on these statutes, can shed 
 but little light on the point now under consideration. 
 The statute of this state provides that absolute divorces 
 shall be granted on the petition of the party aggrieved, 
 and that all persons who shall have resided in the state 
 one year shall be entitled to t>he benefit of the act. It 
 also provides that proceedings may be had against non- 
 residents as well as residents, and points out the mode of 
 giving actual notice to residents, and constructive notice 
 to non-residents. It does not require that the defendant 
 shall be a resident of, or that the marriage contract should 
 be entered into in, or that the causes of divorce should 
 arise in, the state. The Cou'rt is of opinion that if the 
 statute is constitutional, it gives the Circuit Court juris- 
 diction of the case ; and that the statute is constitutional 
 it has no doubt. 
 
 The questions whether divorces granted in one state 
 will be valid in another under all circumstances, and if 
 valid, to what extent, are not now before the Court. 
 These questions are grave questions under our federal 
 constitution, and if they should ever be presented, they 
 will be entitled to the most cautious and mature con- 
 sideration. 
 
 :485)
 
 412-413 SUPREME COURT OF I]S'DIA:N"A. 
 
 The State, on the complaint of Hagaman i. Stafford. 
 
 Per Curiam. — The judgment is reversed with costs. 
 Cause remanded, &c., (1). 
 S77iith, for the plaintiff. 
 Brown, for the defendant. 
 
 (1) The reader will find the law concerning divorces examined at large 
 in Kent's Commentaries, 2d ed. vol. 2, pp. 95 to 128. Vide, also, Indiana 
 E. C. 1831, p. 213. 
 
 The State, on the complaint of Hagaman r. Stafford. 
 
 Bastardy — Criminal, Proceeding. — The provisions of the 77th section of 
 the act of 1824, relative to crimes and punishments, requiring certain ac- 
 tions to be brought within one year next after the offence committed, do 
 not apply to prosecutions under the act for the support of illegitimate 
 children. 
 
 ERROR to the Greene Circuit Court. 
 
 Blackford, J. — This was a prosecution under 
 [*413] the statute for *the support of illegitimate children. 
 The accusation was made by the mother before a 
 justice of the peace on the 19th of September, 1829 ; and 
 the child is alleged to have been born on the 11th of 
 January, 1826. The Circuit Court set aside the proceed- 
 ings and discharged the defendant. 
 
 It is contended, that this suit could not be brought after 
 the expiration of a year from the birth of the child, ac- 
 cording to the 77th section of the act relative to crimes 
 and punishments. Stat. 1824, p. 150. That provision, 
 however, is confined to actions for forfeitures on penal 
 statute and has no application to a case like the present 
 for the support of an illegitimate child. 
 
 Per Curiam. — The judgment is reversed with costs. 
 Cause remanded, &c. 
 
 3ierriU, for the plaintiff, 
 
 Kinney, for the defendant. 
 
 (486)
 
 NOVEMBER TERM, 1831. 413-414 
 
 Simonds v. Colvert and Others, Executors. 
 
 SiMONDs V. Colvert and Others, Executors. 
 
 Justice of Peace — Jurisdiction — Administrators. — The jurisdiction of 
 justices of the peace does uot extend to cases in which an executor or 
 administrator is either plaintiff or defendant (a). 
 
 ERROR to the Sullivan Circuit Court. 
 
 M'KiNNEY, J. — An action of debt was brought against 
 the defendants as executors of Robert Colvert, deceased, 
 before a justice of the peace. The case was submitted to 
 a jury, and they found for the defendants. The plaintiff 
 appealed to the Circuit Court, and on motion of the defend- 
 ant, the case was dismissed on the ground of want of 
 jurisdiction. 
 
 The question before us is, has a justice of the peace 
 jurisdiction in a casein which an executor is defendant? 
 This is an important question. We approach it with a 
 consciousness that its settlement will be sensibly felt, in 
 the adjustment of claims within the jurisdiction of a jus- 
 tice of the peace, growing out of contracts in the repre- 
 sentative character. "We have given the subject every at- 
 tention, anxiously seeking, by analogy, and precedent, a 
 means of arriving at a proper conclusion. The jurisdic- 
 tion of a justice of the peace, in civil actions, is 
 [*414] "^unknown to the common law. Such jurisdiction 
 is given alone by statute. When a statute cre- 
 ates a new jurisdiction, the fixed rules of construction 
 denies to such jurisdiction the exercise of a power not 
 directly given. It can not overstep the provisions of the 
 statute by which it is created, and enlarge itself by infer- 
 ence or implication. 
 
 We have examined the acts regulating the jurisdiction 
 of justices of the peace, and find no provision which gives 
 ajustice of the peace jurisdiction, in a case in which an 
 executor or administrator is either plaintiff or defendant. 
 The provisions of the statute, in authorizing process to 
 
 (a) 8 Blkf. 418. 
 
 (487)
 
 414-415 SUPREME COURT OF INDIANA. 
 
 Simonds v. Colvert and Others, Executors. 
 
 issue, in directing the manner of rendering judgments, 
 regard the parties litigant as acting in their own rights 
 and not in aider droit. The case of Wells v. Newkirk, Exe- 
 cutor of Pierson, 1 Johns. Cases, 228, is in point. The 
 Supreme Court of New York, in that case, in deciding 
 against the jurisdiction of justices of the peace, by infer- 
 ence or implication, where an executor was either plaintiff 
 or defendant, present reasons which irresistibly apply to 
 such jurisdiction in this state. Our statute applies to cases 
 in which a suit is prosecuted or defended in a party's own 
 right, and not in aider droit. Process and judgment are 
 predicated upon individual responsibility : no exception as 
 to arrest on warrant, or limitation of the operation of a 
 judgment. Execution issues against a defendant person- 
 ally, or against his individual property. Defences which 
 are incident to the representative character, are precluded 
 before a justice of the peace without legislative enactment. 
 The plea of j9?f>;e administravit, or of outstanding debts, 
 may put in issue in amount greatly exceeding the juris- 
 diction of justices of- the peace, and, if acted upon, require 
 an examination of the whole administration. No judg- 
 ment can be rendered for assets infiduro, nor against the 
 property of the testator. Such are some of the grounds 
 upon which the decision in New York is founded. They 
 apply to the case before us. The judgment of the Cir- 
 cuit Court must be affirmed (1). 
 
 Per Curiam. — The judgment is affirmed with costs. 
 
 Judah, for the plaintiff. 
 
 Kinney, for the defendants. 
 
 (1) .Justices of the peace have now, by statute, the same jurisdic- 
 [■■■•415] tion in all cases "where executors, administrators, or guardians, are 
 plaintiflfs, that they would have, were those persons suing in their 
 own right. But if the defendant, in such a case, plead any matter of pay- 
 ment, &c., the plaintiff may have the cause removed to the Probate Court. 
 Vide Stat. 1832, p. 251 ; 1833, p. 109; 1834, p. 157. 
 
 (488)
 
 NOVEMBER TERM, 1831. 415 
 
 Daggett V. Robins. 
 
 Daggett v. Robins. 
 
 "Res Adjudicata — Nonsuit. — If the plaintiff, in an action of replevin, be 
 nonsuited, he is not tliereby barred from bringing another action of re- 
 plevin ; the merits of the cause not having been tried. This is the com- 
 mon law; and the statute in England of Ed. 1, prohibiting"a second re- 
 plevin after a nonsuit, is local to that kingdom and not in force here. 
 
 Replevin — Practice. — The action of replevin is not limited to cases of 
 distress ; but lies in all cases of tortious and unlawful taking and deten- 
 tion of goods and chattels («). 
 
 Sajie. — Writs of replevin, in this state, are issued out of the Circuit Court 
 and returned thither as writs in other cases; and the action of replevin 
 is proceeded in and tried as other actions are. - 
 
 APPEAL from the Vigo Circuit Court. 
 
 Stevens, J. — This was an action of replevin, commenced 
 by the appellant against the defendant for certain goods 
 and chattels, which he alleged the defendant unjustly and 
 unlawfully took and detained from him. The defendant 
 pleaded in bar that the plaintiff in the year 1829, in the 
 Vigo Circuit Court, by an action of replevin against the 
 defendant, replevied the same goods and chattels out of 
 the defendant's possession ; and that at the May term, A. 
 D. 1830, of said Circuit Court, the said plaintiff" was non- 
 suit, and the defendant had judgment for a return of the 
 goods and chattels ; and that they were returned by the 
 sheriff* of the county. To this plea the plaintiff demur- 
 red, and the demurrer was overruled by the Court and 
 judgment rendered for the defendant. 
 
 The principal question' is, whether a nonsuit in replevin 
 is a bar to a second replevin. By the common law it 
 would be no bar, but the statute of AVestminster 2 (13 Ed. 
 1, st. 1), chap. 2, restrains the plaintiff' in replevin from a 
 second replevin after nonsuit, but permits him to proceed 
 with his first action by a writ of second delivery, and if 
 he should become nonsuit after the writ of second deliv- 
 ery, no further proceedings can be had. The counsel 
 
 (a) 6 Blkf. 136 ; 4 Td. 304. 
 
 (489)
 
 415-416 SUPREME COURT OF INDIAISTA. 
 
 Daggett V. Kobins. 
 
 for the appellant insists that the recoi:d in this case 
 shows it to be an action founded on a statute of 
 [*416] the ^state authorizing the action of replevin in all 
 cases where goods and chattels are unlawfully 
 taken or detained, and not governed by the statute of 
 Westminster, which relates only to replevins founded on 
 a distress for rent. The record does not show whether 
 the action is founded on a distress for rent or not, nor is 
 it material that it should ; the action in either case, when 
 once in Court, is governed by the same principles and 
 rules of practice. The record in an action of replevin 
 never shows whether it is bottomed on a distress for rent 
 or not, unless the defendant in replevin spreads that fact 
 upon the record by his avowry, cognizance, or other de- 
 fence which he may make to the action. It is true, that 
 at the time those proceedings were had in the Vigo Cir- 
 cuit Court, there were two statutes authorizing the action 
 of replevin, the one founded on a distress for rent, and 
 the other regulating the proceedings, when the action is 
 founded on any other unlawful and unjust taking or de- 
 taining of goods and chattels. But these acts only pro- 
 vide for the issue and service of the writ, the disposition 
 to be made of the goods and chattels replevied, and the 
 condition and effect of the replevin-bond, &c. The plead- 
 ings, prosecution and proceedings in each action, and the 
 judgment rendered, and the execution awarded, are the 
 same, except as to costs. 
 
 The only action now in use is in the detimdt, and is an 
 action that lies not only in the case of a wrongful distress 
 for rent, but in all cases where goods and chattels are tor- 
 tiously and unjustly taken and detained; and our statutes 
 above noticed do not materially change the general doc- 
 trine on the subject. The passage in Blackstone's Com- 
 mentaries, which says that replevin onl}^ lies in case of 
 an unlawful distress, is unwarranted, and is contradicted 
 by the best authorities in England and America. Vide 2 
 Saund. Plead, and Evidence, 760; 1 Chitt. Plead. 119; 
 
 (490)
 
 NOVEMBER TERM, 1831. 416-417 
 
 Daggett V. Robins. 
 
 Bishop V. 3Iontague, Cro. Eliz. 824 ; Pangburn v. Partridge^ 
 7 Johns. Rep. 140; Shannon v. Shannon, 1 Schoales & Lef. 
 327; Ilslcy ct al. v. Stubbs, 5 Mass. 283. The action of 
 replevin is founded on a tortious taking and detaining, 
 and is analogous to an action of trespass, but is in part a 
 proceeding m rem, to regain possession of the goods and 
 chattels; and in part a proceeding in 'personam, to recover 
 damages for the caption and detention, but not for the 
 
 value thereof. Vide Hopkins v. Hopkins, 10 Johns. 
 [*417] Rep. 373; 1 Chitt. Plead. *119; 1 Saund. Rep. 347, 
 
 b, note 2; Fletcher y.Wilkiiis et al, 6 East, 283 (1). 
 In England there are two kinds of replevin ; first, by 
 common law, when the writ issues out of the Court of 
 chancery; second, by the statute of Marlbridge, 52 Hen. 
 3, which enables the sheriff to make replevins without 
 any writ, and then, having taken security, proceed on the 
 complaint of the plaintiff, either by parol or precept to 
 his bailiff, and if a claim of property is put in, the writ 
 of de proprietate probanda at once issues, and is tried by 
 an inquest, and if found for the plaintiff, the sheriff goes 
 on to make the replevin, but if for the defendant, he for- 
 bears. If the writ issues out of chancery at common 
 law, it is only directory to the sheriff to make replevin 
 and proceed in the county Court, and is not Ji returnable 
 process. In that case, the writ de proprietate probanda 
 can not issue until a pluries is issued and returned into 
 the King's Bench or the Common Pleas, when a judicial 
 writ may issue. Any of these suits are removable by 
 either party into the King's Bench or Common Pleas, to 
 be there determined. If the replevin be by writ in the 
 county Court, it must be removed by a pone; if by plaint, 
 it must be removed by a recordari facias loquelam ; if in a 
 Court of record that may hold pleas in replevin, it must 
 be removed by a writ of certiorari ; and if in the Court of 
 another lord, it may be removed by recordari to the 
 sheriff. 
 
 This much of the law of Ens^land is stated to show that 
 
 (lOl')
 
 417-418 SUPREME COURT OF INDIANA. 
 
 Daggett V. Robins. 
 
 there can be no replevin under either the common law, 
 or the statute of Marlbridge, without the aid of our stat- 
 utes. The English law is founded on the usages and cus- 
 toms of that kingdom, growing out of the relation of 
 landlord and tenant under the feudal system and the aris- 
 tocratical doctrines of primogeniture, and is local to that 
 kingdom and can not be m force here. There arc no 
 tAvo kinds of replevin in this state as in England, one by 
 plaint and another by writ; nor is the writ in replevin 
 liable to be defeated by a claim of property .as it is in Eng- 
 land, where such claim as before observed puts an end to 
 the suit, unless it is revived by the writ de proprietatc pro- 
 banda. Our writs of replevin are returnable writs, and 
 the party is riequired to appear on the return day. They 
 issue out of the Circuit Courts as other writs do, and are 
 there returnable ; and the suit is docketed, pro- 
 [*418] ceeded in, set down for trial and *tried, agreeably 
 to the laws and practice of the Court as other 
 actions are. The statute of Westminster 2, (13 Ed. 1. st. 
 1.) chap. 2, is applicable only to actions of replevin 
 founded on a distress for rent, and is not of a general 
 nature, but is local to that kingdom and inconsistent with 
 the laws, practice, and policy of this state, and therefore 
 not in force. The Court, therefore, considers the plea of 
 the defendant in this behalf insuiiicient in law to bar the 
 plaintiff's action, and that the Circuit Court erred in 
 overruling the demurrer thereto. 
 
 Per Curiam. — The judgment is reversed with costs. 
 Cause remanded, &c. 
 
 Huntington and Cone., for the appellant. 
 
 Farrington and Kinney., for the appellee. 
 
 (1) The action of replevin, in this state is not confined, as it is in Eng- 
 hind, to cases wliere there lias been an aclual and nronffful takinx/ of the 
 plaintiff's goods; but it lies, also, in cases where the goods of another are 
 Imrfulb/ acquired and unjuMy and unlavfulhj detained. Vide R. ('. 18.31, p. 424; 
 Chinn v. Russell, ante, p. 172, and note 3 ; Parsley v. Huston, May term, 1834. 
 
 (492)
 
 NOVEMBER TERM, 1831. . 418-419 
 
 Howell V. Wilson. 
 
 HoAVELL V. Wilson. 
 
 Indorsement — Contract of. — The indorser of a note, under our statute, 
 warrants two things: 1st, that the note is valid and the maker liable to 
 pay it ; 2dly, that the maker of the note is solvent and able to pay it. 
 
 Former Adjudication — Indorser — Parties. — If the indorsee sue the 
 maker, and fail on the ground that the note had been obtained without 
 consideration, the indorser is not bound by this judgment against the va- 
 lidity of the note, if notice was not given him of the pendency of the 
 suit. But the indorser may show, in bar of an action against him by 
 the indorsee under those circumstances, that the consideration of the 
 note was a good one. 
 
 Indorser — Liability — Eight of Indorsee. — The indorsee of a note, ob- 
 tained from the maker without consideration, has a right, as soon as he 
 discovers the imposition, to sue the indorser for having assigned him a 
 note which the maker is not liable to pay. 
 
 ERROR to tiie Parke Circuit Court. 
 
 Blackford, J. — Wilson, ibe assignee of a note, brought 
 an action of assumpsit against Howell, the assignor. It 
 was proved on the trial that a note for the payment of 
 money, given by Coleman Puit to Howell, had been as- 
 signed by the latter for a valuable consideration to Wil- 
 son ; and that an action by Wilson, the assignee, against 
 Puit, the maker, had been defeated by a plea of a 
 [*419] failure of consideration. The defendant, 'i'Howell, 
 in the present action against him on the assign- 
 ment, offered to prove that the consideration of the note 
 was valid, and had not failed ; but the evidence was re- 
 jected. The cause was submitted to the Circuit Court, 
 and a judgment rendered in favor of Wilson, the plaintiff 
 below. 
 
 One of the errors relied pn by Howell, the plaintiff in 
 error, is, that the testimony he offered ought to have been 
 admitted. 
 
 When a man assigns a note to another, he warrants 
 two things : first, that the note is valid and the maker liable 
 to pay it; secondly, that the maker of the note is solvent 
 and able to pay it. Cases of the latter kind are common; 
 
 (493)
 
 419-420 SUPREME COURT OF INDIANA. 
 
 Howell V. Wilson. 
 
 but the one before us is the first of the former kind that 
 we have had occasion to examine. 
 
 The principle which must govern our decision is a plain 
 one. Howell can not be made liable for having assigned 
 a note, on the ground that he had obtained it without 
 consideration, unless he have an opportunity to establish 
 the validity of the note. If Wilson, after having sued 
 Puit, the maker, had given notice to Howell of the pen- 
 dency of the suit, the latter might have attended at the 
 trial, and endeavored to support the note. In that case 
 Howell would have been bound by the judgment in favor 
 of Puit. But as no such notice is pretended to have been 
 given to the indorser, he is not to be precluded by the 
 proceednig against the maker, which, as to him, is res 
 inter alias acta. Maupin v. Comj^toyi, 3 Bibb, 214. 
 
 If, however, the facts are as Wilson states, and this note 
 was really obtained by Howell from Puit without a valid 
 consideration, Wilson had a right, as soon as he discov- 
 ered the imposition, to sue Howell for having assigned 
 him a note, which the maker was not liable to pay. Caton 
 V. Lenox, 5 Rand. 31. The present action, therefore, is 
 not to be barred, as contended for by Howell, merely be- 
 cause no notice was given him of the pendency of the suit 
 against Puit. The cause stands upon the same ground on 
 which it would have stood had there been no previous 
 suit against the maker of the note. And Wilson's suc- 
 cess must depend upon the decision of the question, 
 whether Puit was liable or not for the note at the time 
 of its assignment by Howell. 
 
 This view of the subject shows that Howell had a right, 
 in the suit against him by Wilson, to prove that 
 [*420] the consideration *of the note was a good one, 
 and had not failed as Wilson contended. We are 
 informed by the record that evidence of this kind was 
 offered by Howell, and rejected by the Circuit Court. 
 The judgment against him is consequently erroneous, and 
 must be reversed. 
 
 (494)
 
 NOVEMBER TERM, 1831, 420 
 
 Kelly V. Duignan and Another. 
 
 Per Curiam.— The judgment is reversed with costs. 
 Cause remanded, &c. 
 Hester, for the plaintiff. 
 Kinney, for the defendant. 
 
 Kelly v. Duignan and Another. 
 
 Amendment— Continuance— A declaration in covenant, not showing the 
 writing declared on to be under seal, Avas amended by the insertion of 
 words describing the instrument as a writing obligatory. Held, that this 
 was an amendment in substance, and entitled the defendant, under the 
 statute, to a continuance. 
 
 ERROR to the Owen Circuit Court.— Covenant by 
 Duignan and Boggs against Kelly. Demurrer to the dec- 
 laration and judgment for the plaintiffs. 
 
 M'KiNNEY, J.— Action of covenant for the payment of 
 800 gallons of whisky. The declaration contains one 
 count. On the calling of the cause, the plaintiff obtained 
 leave to amend his declaration. The amendment con- 
 sisted in making profert, and introducing the words "by 
 his certain writing obligatory," as essentially descriptive 
 of the instrument. The defendant, upon the amendment 
 being made, moved the Court to continue the cause, alleg- 
 ing ^he amendment to be of substance. The Court re- 
 fused a continuance, and to its opinion the defendant ex- 
 cepted. AVe think the latter amendment was of sub- 
 stance. The action of covenant can only be brought upon 
 a sealed instrument. The words " by his certain writing 
 obligatory," or other words importing a specialty, are es- 
 sentially necessary to be introduced into the count as de- 
 scriptive of the instrument. Without these words, profert, 
 a matter of form, would have been unnecessary, and the 
 cause proceeding to judgment, would have been arrested 
 or reversed on error. The defendant can claim, as a 
 matter of right, a continuance when a substantial amend- 
 
 (495)
 
 4-21 SUPREME COURT OF INDIANA. 
 
 O'Brien and Another t;. Coulter and Others. 
 
 [*421] ment has been made. Ewing and others y.'^French, 
 1 Blackf. 170; Rev. Code, 1824, p. 295. The re- 
 fusal to continne the cause is error, and meeting us in 
 limine, renders it unnecessary to advert to the subsequent 
 proceedings. 
 
 Per Curiam. — The judgment is reversed with costs. 
 Cause remanded, &c. 
 
 Hester, for the plaintift". 
 
 Naylor, for the defendants. 
 
 O'Brien and Another r. Coulter and Others. 
 
 Creditor's Bill — Property not Subject to Execution — Equitable 
 Rebiedy. — It is a general rule, that to reach the equitable interest of a 
 debtor in real estate by a suit in chancery, the creditors should first ob- 
 tain a judgment at law ; and to reach personal property, both a judgment 
 and execution must be shown. One exception to this rule is, where the 
 debtor is deceased ; another exception is, where the claim is to be satis- 
 fied out of a fund accessible only by the aid of a Court of chancery. 
 
 Fraudulent Conveyance. — A person indebted to several others and in 
 insolvent circumstances, executed a conveyance of his real estate to his 
 children, in consideration of a nominal sum and of natural love and 
 affection, and with an intent to defraud his creditors. Two of the 
 grantees were daughters and afterwards married. The grantor continued 
 in possession, contracted other debts subsequently to the deed, and died 
 insolvent. Held, that the conveyance was voluntary, and fraudulent and 
 void as to the creditors of the grantor. 
 
 Tax Sale — Evidence. — If the sale of town lots for taxes was authorized 
 by the revenue act of 1818 (which is doubtful), the validity of a sale 
 under the act can only be established by legal proof that the law had 
 been strictly complied with. 
 
 Same — Judicial Sale — Sale in Parcels.— Two town lots, one with a 
 house on it, the other unimproved, worth 400 or 500 dollars, were sold 
 together for a tax of 4 dollars. Held, that the sale under those circum- 
 stances was illegal. 
 
 Presumption — Time — Payment. — After a lapse of 20 years, without any 
 acknowledgment of the debt, the payment of a Meriting obligatory may 
 be presumed. 
 
 THIS was a suit in eqnit}', transferred from Knox Cir- 
 
 (496)
 
 NOVEMBER TERM, 1831. 421-422 
 
 O'Brien and Another i. Coulter and Others. 
 
 cuit Court previously to a decree, in consequence of the 
 interest of the Circuit Judge. 
 
 Stevens, J. — The material facts in this case as disclosed 
 by the bill, answer, exhibits, and depositions, are these: 
 One Thomas Coulter, late of the town of Vincennes, in 
 the county of Knox, some time in the year 1826, departed 
 this life intestate, leaving, surviving him, one son, John 
 Coulter, and three daughters, that is, Matilda, married to 
 John Pitcher, Rosantte, married to Christian Graeter, 
 and Ellen, married to Manual Rue, the above defend- 
 ants. The intestate, in his life-time, became in- 
 [*422] debted as ^follows: To Jacob Kuykendall, by 
 writing obligatory bearing date the 15th day of 
 October, 1800, in the sum of 50 dollars, payable in 30 
 days; also, in the further sum of 11 dollars and 75 cents, 
 by writing obligatory bearing date the 8th of July, 1809, 
 payable the 1st day of August, 1809. To Thomas Jones, 
 by writing obligatory, bearing date the 26th day of 
 August, 1816, in the sum of 30 dollars. To Hyacinth 
 Lasselle, by judgment rendered by Christian Graeter, a jus- 
 tice of the peace, on the 20th day of January, 1820, for 5 
 dollars and 41 cents debt and 3 dollars and 37 cents costs. 
 And to Dr. Ellas M'Namee, by open account for medi- 
 cine and medical services, in the sum of 220 dollars and 
 75 cents, as follows : in the year 1819, 9 dollars and 25 
 cents ; in the year 1820, 54 dollars and 50 cents ; in the year 
 1821, 7 dollars; in the year 1825, 125 dollars; and in the 
 year 1826,25 dollars; making the sum of 220 dollars and 
 75 cents. 
 
 In the year 1817, the intestate was much indebted and 
 wholly insolvent, but was the owner by legal title and 
 possessor of a house and lot on the corner of Second and 
 Vigo streets, in the town of Vincennes, being half of lot 
 No. 81, and a part of lot No. 80, worth at that time 400 
 or 500 dollars; and on the 8th day of February, 1817, he 
 conveyed by deed in fee -simple with warranty to his 
 children, John, Matilda, Rosantte and Ellen Coulter, four 
 Vol. II.— 32 (497)
 
 422-423 SUPREME COURT OF INDIANA. 
 
 O'Brien and Anoilier v. Coulter and Others. 
 
 of the above defendants, the aforesaid house and lot and 
 the part of lot No. 80, for and in consideration of 5 dol- 
 lars and natural love and aflection. He continued to use 
 and occupy the property as his own, and enter it on the 
 list of the tax assessor, and pay tax thereon as his own, 
 until in the year 1823, when the whole was sold by the 
 tax collector for the taxes and costs for the year 1823, 
 amounting to the sum of 4 dollars ; and was for that sum 
 purchased by John Pitcher, one of the defendants and a 
 son-in-law of the intestate, who received a tax collector's 
 deed or certificate therefor. Pitcher occupied the house 
 with the intestate, his father-in-law, at the time of the 
 sale and purchase, and they continued so to occupy it 
 together until the intestate's death, and Pitcher has ever 
 since continued to occupy it. The intestate died totally 
 insolvent, leaving no personal property whatever, nor 
 any real estate excepting the house and lot and part of 
 a lot aforesaid, so deeded and conveyed to his children 
 and sold for taxes as aforesaid, and no letters of 
 ["^^423] administration *have ever been taken out on his 
 estate, there being nothing to administer on. 
 Pitcher, in his answer, insists on his tax-title, and sets up 
 in bar of the complainants' claims, the statute of limita- 
 tions and the presumption of payment from lapse of time. 
 The other defendants have failed to answer, and the bill 
 as to them is taken for confessed. 
 
 The first objection raised is, that the complainants are 
 not judgment creditors. It is the general doctrine, cer- 
 tainly, that to reach the equitable interest of the debtor 
 in real estate by a suit in chancery, the creditor should 
 first obtain a judgment at law; and to reach personal 
 property, both a judgment and execution must be shown. 
 Brinkerhoff V. Brown, 4 Johns. Ch. Rep. 671; 1 Har. 
 Chan. 116; 1 Vern. 398; 1 P.Will. 445; 3 Litt. Rep. 12. 
 One exception to this rule is, where the debtor is deceased. 
 Thompson et ciL v. Brown et al. 4 Johns. Ch. Rep. 619; 
 Sioeny et al. v. Ferguson, May term, 1828. And, again, 
 
 (498)
 
 :n'ovember term, issi. 423-424 
 
 O'Brien and Another i. Coulter and Others. 
 
 Chief Justice Marshall, in the case of Russell v. Clark's 
 Executors, 7 Cranch, 89, says " that if a claim is to be sat- 
 isfied, oat of a fund, which is accessible only by the aid of 
 a Court of chancery, application may be made, in the 
 first instance, to that Court, which will not require that 
 the claim should be first established in a Court of law." 
 This principle forms a second exception to the general 
 rule ; and this case comes within both these exceptions. 
 The complainants in this case come in as creditors of the 
 intestate, showing that they have no complete remedy at 
 law, and charging that the conveyance of the intestate to 
 his children, as to them, is fraudulent and void, and that 
 the tax-title to Pitcher is not only illegal, but also fraudu- 
 lent and therefore void. They pray to have these con- 
 veyances set aside and rendered null and void, and that 
 general and proper relief be granted them in the premises. 
 The writings obligatory, judgment, and accounts, are all 
 exhibited, and satisfactorily established. 
 
 The deed of the intestate to his children was clearly a 
 voluntary conveyance, and no principle is better settled 
 than the doctrine, that voluntary settlements made by a 
 man indebted and in insolvent circumstances, are fraudu- 
 lent and void against creditors, particularly so, if made 
 with a fraudulent intent or with a view to after pecuniary 
 
 difficulties. Reade v. Livingston, 3 Johns. Ch. 
 [*424] Rep. 481 ; Bayard v. Hoffman, 4 Johns. Ch. *Rep. 
 
 450; Sexton v. Wheaton, 8 Wheatow, 229; Ilinde 
 V. Longworth, 11 Wheat. 199. The conveyance in this 
 case, it is avered by the complainants in their bill, was 
 made by the intestate at a time when he was indebted 
 and totally insolvent, and with a fraudulent intent as to 
 his creditors. These allegations are not denied by the 
 defendants, and, if they were denied, the exhibits and 
 depositions clearly prove them to be true. It is objected, 
 that although the conveyance was voluntary and void in 
 its creation, yet that two of the daughters having since 
 married, the character of the transaction as to them is 
 
 (499)
 
 424-425 SUPREME COUKT OF INDIANA. 
 
 O'Brien and Another v. Coulter and- Others. 
 
 changed; that marriage is the highest consideration 
 known to the law; and that so far as these two daughters 
 are concerned the conveyance is good, being by the mar- 
 riage placed on the footing of purchasers for a valuable 
 consideration. This as a general proposition is correct, 
 but when applied to the case under consideration, as pre- 
 sented by the bill, answer, exhibits, and depositions, it 
 has no application and can not change the features of the 
 transaction. 
 
 The next consideration is the tax-title of Pitcher. It 
 may, perhaps, be necessary in the outset to premise, that 
 whenever any authority is given to any person or officer 
 by law, whereby the estates or interests of other persons 
 may be forfeited and lost, such authority must be strictly 
 pursued in every instance. Yancey v. Hojjkins, 1 Mun- 
 ford, 419. In the case of Ronkendorff v. Taylor's lessee, 4 
 Peters, 349, it is decided, that in these ex 'parte sales, such 
 as the sale of land for taxes, great strictness is required. 
 Every substantial requisite of the law must be complied 
 with. No presumption can be raised in behalf of the col- 
 lector to cure any radical defect in his proceedings ; and 
 the proof of regularity devolves upon the person who 
 claims under the collector's sale. The sale, in this case, 
 was made under the provisions of the revenue act of 1818, 
 and the only proof offered to, establish that the requisites 
 of the act w^ere complied with, is the deed of the collector. 
 If it be admitted that the averments and statements in 
 the collector's title, like those in the deed of a sheriff, are 
 to be taken for true until the contrary is proven, 3'et there 
 is not a sufficiency of evidence in this case produced to 
 satisfy the Court that the substantial requisites -were 
 complied with. These requisitions are plainly delineated 
 
 in the act, and those wishing to establish the 
 [*425] validity of the ^sale are bound to satisfy the 
 
 Court by legal proof, that, there has been a strict 
 compliance therewith. The collector's title in this in- 
 stance does not sufficiently prove those facts. It is also 
 
 (500)
 
 NOVEMBER TERM, 1831. 425 
 
 O'Brien and Another v. Coulter and Others. 
 
 doubted whether the statute of 1818 authorizes the sale 
 of town lots for taxes. Some of the most correct leeal char- 
 acters in the state have had very strong doubts. The 
 Court however, on that point gives no opinion. Again, 
 those lots with their improvements appear to have been 
 sold in one lot for the trifling sum of 4 dollars. The law 
 governing the sales of sheriffs on execution is, that so 
 much only of the defendant's property shall be sold at 
 one time, as a sound judgment would dictate to be suffi- 
 cient to pay the debt, provided the part selected can be 
 conveniently and reasonably detached from the residue 
 and sold separately. Eeed v. Carter^ 1 Blackf. Rep. 410;: 
 Tiernan v. Wilson, 6 Johns. C. Rep. 411 (1). A part of 
 this property could have been conveniently and reason- 
 ably selected and detached, being in two separate lots of 
 land, one with a house on it and the other without any 
 buildings. 
 
 Pitcher, in his answer, admits the writings obligatory 
 exhibited to be genuine, but alleges they must have been 
 paid, and relies on the lapse of time for proof. That 
 after a lapse of 20 years, without a promise to pay, pay- 
 ment may be presumed, is correct; but no such presump- 
 tion can apply in this case, the intestate having acknowl- 
 edged the debt and promised payment within three years 
 of the time of his death, as appears by the depositions. 
 
 From these views of the case the Court thinks that the 
 conveyance from the intestate to his children is fraud- 
 ulent and void as to creditors, and that Pitcher's tax-title 
 is illegal and conveys no title, and that the complainants 
 have equity and are entitled to relief. 
 
 Per Curiam. — It is decreed that the conveyance of th) 
 intestate, and the tax-title of Pitcher, be set Eside, &c.; 
 that the lots be sold, &c. ; and that the commissioner 
 report, &c, 
 
 Judah, for the complainants. 
 
 Hall, for the defendants. 
 
 (1) Reed et al. v. Carter, May term. 1834, post. 3 Blkf. Eep. 376. 
 
 (501)
 
 426 SUPREME COURT OF INDIANA. 
 
 Lindley, Executor, v. Cravens, Administratrix. 
 
 [*426] Lindley, Executor, v. Cravens, Administratrix. 
 
 Mistake — Remedy — Principal and Agent.— A., being the agent of a 
 county, sold certain town lots belonging to the county to B., and gave 
 him a title-bond for the same. The bond was, by mistake and contrary 
 to the intention of both parties, so drawn and executed as to appear ob- 
 ligatory on A. personaliv. Held, that the mistake could not be pleaded 
 in bar to an action at law against A. on this bond (a). 
 
 Same — Reformation — Remedy. — Held, also, that after a judgment ob- 
 tained against A. on the bond, he might, by a bill in chancery, have the 
 judgment enjoined, and the mistake in the bond corrected ; but that the 
 county as well as B. must be made a party to the suit. 
 
 Practice— Demurrer. — Held, also, that if a demurrer to a bill for want 
 of proper parties be sustained, the bill should not be dismissed ; but the 
 cause be ordered to stand over for a reasonable time, with leave to 
 amend the bill. 
 
 ERROR to the Orange Circuit Court. 
 
 Blackford, J. — This is a bill in chancery by William 
 Lindley, executor of Jonathan Lindley, deceased, against 
 Jane Cravens, administratrix of William Cravens, de- 
 ceased. 
 
 The bill states that Jonathan Lindley, having been ap- 
 pointed agent of Orange county, sold, in his capacity of 
 agent, at public vendue, certain lots of ground, the prop- 
 erty of the county, situate in Paoli, the seat of justice; 
 that three of the lots were purchased by John Austin, for 
 which said Jonathan, in his capacity of agent, executed 
 to the purchaser a title-bond, in substance as follows : 
 
 "I. Territory, Orange county. Know all men by these 
 -- presents that I, Jonathan Lindley, lawful agent for the 
 \ town of Paoli, am held and firmly bound unto John Aus- - 
 tin in the penal sum of 157 dollars and 50 cents; to which 
 payment I bind myself, my heirs, and every of them, to 
 be made and done. Witness my hand and seal, April 9th, 
 1816. The condition of the above obligation is such, that ' 
 if the above bounden Jonathan Lindley doth make a deed 
 unto John Austin for lots Nos. 78, 21 and 28, in the town 
 
 (a) See 49 Ind. 434; 40 Id. 366 ; 9 Jd. 126. 
 
 (502)
 
 NOVEMBER TERM, 1881. 426-427 
 
 Lindley, Executor, v. Craveni?, Administratrix. 
 
 of Paoli, as soon as he can obtain a deed for the same. 
 In failure thereof, the above obligation to stand in full 
 force and virtue in law. The date above written. — Jon- 
 athan Lindley (Seal)." 
 
 The bill further charges that the said Jonathan, by this 
 ^ond, intended to bind himself as county agent and not 
 
 personally ; that he inserted by mistake therein 
 [*427] the term heirs instead of ^successors in office, and 
 
 used the words agent for the town of Paoli, in- 
 stead of agent for the county of Orange. It is also stated 
 that the consideration-money for these lots was paid by 
 the purchaser to the said Jonathan, as agent of the county, 
 and by the latter paid over to the county ; that the said 
 Jonathan personally never had any interest in the lots ; 
 and that it was the clear understanding of the parties at 
 the time of the contract that the said Jonathan was con- 
 tracting as agent as aforesaid and not individually. It is 
 further stated that, some time after the execution of the 
 bond, Austin received from the said Jonathan, as agent 
 of the county, a deed for two of the said lots, and indorsed 
 a receipt for it on the title-bond; that Austin afterwards 
 assigned the bond, as to the third lot, to William Cravens, 
 who has since died; and that Jane Cravens, the assignee's 
 administratrix, has recovered a judgment on the said title- 
 bond against William Lindley, executor of the said Jon- 
 athan, to be levied of the goods of the testator — the Court 
 having overruled the defendant's plea, which averred the 
 ynistake in the bond. It is also stated that the circum- 
 stances attending the execution of the bond, and the in- 
 tention with which it was executed, were well known to 
 William Cravens at the time of the assignment. The 
 bill prays an injunction of the judgment, and general 
 relief. 
 
 To this bill the defendant below demurred, and set out 
 as causes of demurrer, 1st, that the bill contains no equity ; 
 2d, that the county of Orange should have Ijeen a defend- 
 ant. The Circuit Court sustained the demurrer — dissolved 
 
 (503)
 
 427-428 SUPREME COUET OF IXDIAi^A. 
 
 Lindley, Executor, v. Cravens, Administratrix. 
 
 the injunction which had been granted in vacation — and 
 dismissed the bill. 
 
 The defendant in error contends that the merits of the 
 bill were decided in the action at law, and can not be in- 
 vestigated again by a Court of chancery. She contends, 
 also, that the county of Orange is interested, and should 
 have been a party to the bill. 
 
 The statement of the bill is, that the bond was intended 
 by the obligor and obligee to be an official bond, obliga- 
 tory only on the county of Orange ; but that, by mistake, 
 the bond was drawn so as to appear to be binding on the 
 obligor personally. The remedy of the complainant, un- 
 der the circumstances which he states, can only 
 [*428] be by procuring the alleged mistake *in the bond 
 to be corrected. To eflect this purpose, he is com- 
 pelled to resort to a Court of chancery. The mistake in 
 the bond could not be pleaded by the complainant, in the 
 action at law brought against him on the bond; and the 
 Court in which the plea to that effect was offered very 
 correctly overruled it. The judgment at law, therefore, 
 against the complainant, is no bar to this proceeding in 
 chancery. 
 
 The second objection made to the suit in chancery is a 
 good one. We have already observed, that the complain- 
 ant's relief was by procuring the mistake in the bond to 
 be corrected. If he can effect that object, he not only dis- 
 charges the estate of Jonathan Lindley from the obliga- 
 tion, but he makes the county of Orange a party to it, and 
 liable to comply with its condition. A Court of chancery, 
 certainly, will not make such an alteration in this bond, 
 without giving to the county an opportunity of shownig, 
 that the alteration ought not to be made. The complain- 
 ant is mistaken in supposing that the Court will relieve 
 him, without going any further. If he obtain a decre^^ 
 correcting the mistake in the bond and enjoining the 
 judgment against him, the same decree must establish the 
 liability of the county of Orange on the bond. The re- 
 
 (504)
 
 NOVEMBER TERM, 1831. 428-429 
 
 Hall V. Rogers. 
 
 lief, therefore, claimed by the complainant, can not be ob- 
 tained by him, unless the county, which is to be so ma- 
 terially afiected by the decree, be made a party to the 
 suit. The bill, therefore, was not sufficient for the ac- 
 complishment of its object, on account of the want of 
 proper parties. For this objection, however, the bill 
 should not have been dismissed in the first instance. On 
 sustaining the demurrer, the Court should have ordered 
 the cause to stand over for a reasonable time, with leave 
 to the complainant to amend his bill. 2 Madd. 142. The 
 decree dismissing the bill must, therefore, be reversed, and 
 time be given to amend. 
 
 Per Curiam. — The decree is reversed. Cause remanded, 
 &c. 
 
 Farnham, for the plaintifi". 
 
 Dewey, for the defendant. 
 
 [*429] *Hall i\ Rogers. 
 
 Arrest — Justification — Pleadinc4. — Trespass and false imprisonment. 
 Plea, that the plaintiff, by his false representations respecting the cir- 
 cumstances of a third person, had induced the defendant, then in Louis- 
 iana, to sell there on a credit to such person a boat laden with corn ; that 
 the plaintiff and the purchaser absconded without paying for the corn, 
 and were fugitives from justice ; that the defendant, for these reasons, 
 made oath before a justice in this state, that the plaintiff and the pur- 
 chaser had swindled him out of the price of his corn ; that a warrant for 
 swindling was accordingly issued by the justice against the parties com- 
 plained of, upon which the plaintiff was arrested, taken before the jus- 
 tice, and by him committed to gaol, which is the same trespass, &c. Held, 
 on demurrer, that the plea was insufficient (a). 
 
 ERROR to the Gibson Circuit Court. 
 
 M'KiNXEY, J. — Trespass and false imprisonment. The 
 declaration contains three counts. The two first general, 
 the third special. Plea of not guilty, and two special 
 
 (a) 35 Ind, 285. 
 
 (505)
 
 429-430 SUPREME COURT OF I^DIAl^A. 
 
 Hall !. Rogers. 
 
 pleas of justification. To the special pleas, the plaintifi 
 filed a special demurrer. The demurrer was overruled, 
 aud judgment rendered for the defendant. 
 
 The causes of demurrer are, 1st, no legal warrant au- 
 thorizing the imprisonment; 2d, no offence in the affidavit 
 on which warrant issued; 3d, justice had no jurisdiction 
 of the oftence, if an}'. It is averred in the special pleas, 
 both of which are directed to the same ground of defence, 
 that the defendant was swindled out of 860 dollars and 50 
 C-Mits, in the state of Louisiana, by the false representa- 
 tions of the plaintifi". They consisted in the plaintiff's 
 representing that one Overfield, of that state, owned some 
 negroes and a tavern stand in Donaldsville, and was fit 
 and worthy to be trusted; that, in consequence of such 
 representations, the defendant was induced to trust, and 
 did trust Overfield with a boat of corn ; that Overfield did 
 not own the property represented ; that he was not fit to 
 be trusted ; and that he absconded without paying de- 
 fendant for his corn. It is also averred that the plaintiff 
 absconded and was a fugitive from justice; and that the 
 defendant, in pursuance of a statute of this state concern- 
 ing "fugitives from justice," went before a justice of the 
 peace and made an affidavit, " that he had been swindled 
 out of 860 dollars and 50 cents by Overfield and Hall, 
 
 plaintiff"; that upon such affidavit a warrant was 
 [*430] issued against *Overfield and Hall, plaintiff", for 
 
 swindling; that Hall was arrested, taken before a 
 justice of the peace, and by him committed to jail; which 
 are the same trespasses, &c. 
 
 The statute of this state, authorizing the arresting and 
 securing "fugitives from justice," provides for its action 
 only in the event of a crime committed. The distinction 
 between crimes and misdemeanors does not warrant the 
 application of the former grade of oft'ence to the act, to 
 which the 18th section of our statute relative to crime 
 and punishment applies. Upon such application, the 
 pleas are attempted to be supported. Admitting, how- 
 
 (506)
 
 NOVEMBER TERM, 1831. 430-431 
 
 Modisett and Another v. Johnson and Others. 
 
 ever, the application, the pleas are insufficient. They do 
 not bring the acts of the plaintiff within the operation 
 of that section. The false representation of the solvency 
 of another is the gronud of a civil action. The charges 
 in the pleas amount to nothing more. A crime is not 
 charged to have been committed in Louisiana. If no 
 crime was committed in that state, a commitment in this 
 can not be justified. The term "swindling," the charge 
 made in the affidavit and in the warrant, is vague and 
 indefinite. It does not import a crime. Such a charge 
 is not actionable, not being a punishable offence. The 
 affidavit not charging a crime is insufficient ; the warrant 
 pursuing its terms does not justify the arrest; the im- 
 prisonment was illegal. The jurisdiction of a justice of 
 the peace is limited. When that jurisdiction is trans- 
 cended, responsibility attaches, and everything done is 
 void. This principle applies, whether the want of juris- 
 diction embraces the subject-matter or the person. Wise 
 V. Withers, 3 Cranch, 331 ; Perkin v. Proctor, 2 Wils. 382 ; 
 31ostyn v. Fabrigas, Cowp. 161. 
 
 The pleas are insufficient. Judgment should have been 
 rendered in favor of the plaintiff. 
 
 Per Curiam. — The judgment is reversed with costs. 
 Cause remanded, &c. 
 
 Hall, for the plaintiff. 
 
 Judah and Battell, for the defendant. 
 
 [=^431] ^Modisett and Another v. Johnson and Others. 
 
 JuDGMEXT Lien — Land Held by Title-Bond. — A judgment is no lien on 
 land, which the debtor holds by a bond conditioned for the execution of 
 a title on payment of the purchase-money, though he had taken posses- 
 sion and paid the money before the rendition of the judgment ; and a 
 sheriff's sale, on execution against the obligee, of land .so held, conveys 
 no estate to the purchaser («). 
 
 (a) 45 Ind. 489 ; 21 Id. 112 ; 20 Id. 481 ; 8 Id. 533 ; 6 Id. 380. 
 
 (507)
 
 481-432 SUPREME COURT OF INDIANA. 
 
 Modisett and Another v. Johnson and Others. 
 
 Same— Sale of Equity— Intekest.— The statute of frauds, authorizing 
 the sale of lands on execution against a cestui que trust, does not extend to 
 equitable interest possessed by the obligee of a title-bond. 
 
 Specific Performance— Requisites.— Upon an application to the Court 
 of equity, for a specific execution of a contract for the sale of land, the 
 Court must be satisfied that the claim is reasonable and just, and the 
 contract equal in all parts, and founded on an adequate consideration. 
 If any of these points be not established by the complainant, he will be 
 left to his remedy at law. 
 
 APPEAL from the Vigo Circuit Court.— Bill in chan 
 eery by Johnson and others against Modisett and Chirka 
 Decree of the Circuit Court for the compUiinants. 
 
 Stevens, J. — The facts in this case, as exhibited by the 
 bill, answers, exhibits, depositions, and record are sub- 
 stantially these : 
 
 In May, 1824, judgment was rendered in the Vigo Cir- 
 cuit Court against Charles B, Modisett, the debtor, and 
 Thomas H. Clarke, his surety, in favor of Cuthbert Bul- 
 litt, surviving partner of the late firm of C. & T. Bullitt, 
 for the sum of 847 dollars and 82 cents; which judgment 
 was replevied, under the statute, by John M. Coleman. 
 In May, 1825, a writ of fi. fa. issued, and was levied by 
 the sheriif of the county on some of Modisett's personal 
 propert}^, which sold for 159 dollars and 50 cents; and, 
 at the same time, the sheriff levied the same fi. fa. on 5 
 out lots and 24 in lots of the town of Terre Haute, in the 
 county of Vigo, as the property of Modisett, among which 
 were the lots in question in this case, to wit, in lots 18, 
 248, and 286, and out lots 42, 26, and 15— all of which 
 lots were returned not sold. In July, 1825, a venditioni 
 exponas issued, and all said in and out lots, except one in 
 lot numbered 257, were sold by the sherift'for the sum of 
 39 dollars and 60 cents. The in lots 18 and 286, and the 
 out lots 42, 26, and 15, were purchased by said Daniel II. 
 Johnson and one Robert Wilson for 21 dollars and 622- 
 cents, and the in lot 248 was purchased by one 
 ['•'432] Edward Madden '''for one dollar, which lot the 
 said Madden afterwards sold to said Johnson and 
 Wilson. (508)
 
 NOVEMBER TERM, 1831. 432 
 
 Modisett and Another v. Johnson and Others. 
 
 At the time those lots of land were levied on and sold, 
 they were in the possession of Modisett, and held by him 
 by bonds on the proprietors of the town, conditioned for 
 the conveyance by deed of the lots when the purchase- 
 money should be paid. Modisett -had no deeds for said 
 lots or an}' of them. The purchase-money on in lots 248 
 and 287, and perhaps on out lot 42, was paid, but the 
 purchase-money for, in lot 18 and out lots 26 and 15 was 
 not paid. Before the sale of any of the lots took place, 
 Modisett offered to give up to the sheriff in lieu of said 
 lots, goods and chattels worth at least 1,700 dollars; and 
 he showed the sheriff' a schedule of the goods and chat- 
 tels, and offered to give good bond and security for the 
 delivering thereof on the day of sale ; and the sheriff re- 
 fused to receive them, stating that he should first sell the 
 lots, as they had been shown to him by the plaintiff''s 
 attorney, Mr. Farrington. On the day of sale of the lots, 
 before any of the lots were sold, Modisett publicly in- 
 formed all the persons at the sale that he had offered 
 goods and chattels in lieu of the lots, and that the sheriff 
 had refused to take them, and that he had no title to the 
 lots, and hoped no person would buy them, as he did not 
 wish any person to pay money for him for nothing. And 
 after the sale was over, and before any money was paid 
 to the sheriff", Modisett again informed those who had 
 purchased, that he had no title and that he did not wish 
 them to pay money for him for nothing; that if they 
 would relinquish their bids he would pay the amount to 
 the sheriff". Many of the purchasers did relinquish their 
 bids, and Modisett paid the amount of those bids so re- 
 linquished. But Johnson, Wilson, and Madden, refused 
 to relinquish theirs; paid their own bids; and took deeds 
 from the sheriff' for the lots they had purchased, being 
 the lots now in controversy. The whole of the lots levied 
 on and sold were, at the time of the sale, worth upwards 
 of 1,200 dollars, and in 1829 were worth 2,800 dollars; 
 and in lots 18, 248, and 286, and out lots 15, 26, and 42, 
 
 (509)
 
 432-433 SUPREME COURT OF IN'DIANA. 
 
 Modisett and Another v. Johnson and Others. 
 
 were at the time of the sale worth 105 dolhirs, and, iti 
 1829, were worth between 500 and 600 doUars cash in 
 hand. And Modisett and his replevin-surety, John M. 
 Coleman, were each solvent, and had a sufficiency of both 
 
 real and personal property to pay the amount of 
 [*433] the ^execution on which those lots were sold. 
 
 In 1826, Thomas H. Clarke purchased of Modi- 
 sett the in lot 286, and out lots 15, 26, and 42, for 430 
 dollars, and took an assignment from Modisett of the 
 title-bonds on the proprietors of the town for deeds, from 
 whom he has since received deeds for the out lots, but 
 not for the in lot, At the time of the purchase, Modisett 
 put Clarke into possession, which possession he still holds, 
 and the lots have been much improved since the sale 
 thereof by the sheriff, both by Modisett and Clarke. 
 
 The complainants allege in their bill that all the lots 
 levied on and sold were paid for at the time of the sale, 
 and that Modisett was at that time entitled to deeds there- 
 for, and that he neglected and delayed taking deeds for 
 the purpose of defrauding his creditors. They further 
 allege that Clarke had full notice of the premises, and 
 that the sale from Modisett to Clarke was and is volun- 
 tary and fraudulent, and was made for the purpose of de- 
 frauding the complainants out of their rights, and pray 
 the Court for special and general relief. Modisett in his 
 answer expressly denies that he delayed and neglected 
 perfecting his title to those lots for the purpose of de- 
 frauding his creditors; but says that he was not entitled 
 to deeds for any except three ; and that for the purpose 
 of saving expense, he wished all his lots to be conveyed 
 by one deed, and was merely waiting until they all should 
 be paid for, so as to include them all in one deed ; that he 
 was always able to pay his debts and did pay them. He 
 also denies all fraud. Modisett and Clarke both expressly 
 aver that the sale and transfer by Modisett to Clarke of 
 the aforesaid lots were bona fide, and for a valuable con- 
 sideration ; and that Clarke had no notice whatever, of 
 
 (510)
 
 ' NOVEMBER TERM, 1831. 433-434 
 
 Modisett and Anothei' v. Johnson and Others. 
 
 any description, of the aforesaid sheriff's sale, or that 
 there was any claim or incumbrance of any description 
 on the lots when he purchased and took the transfers and 
 possession from Modisett. And they both deny that the 
 complainants have either a legal or an equitable title to 
 either the possession or fee simple of the property. They 
 also deny all fraud. It appears of record that Robert 
 Wilson, the original purchaser at the sheriff's sale, is dead, 
 and that Martha Wilson is his widow, and Melinda John- 
 son and Ralph Wilson, the above appellees, are his chil- 
 dren and heirs, and are therefore admitted as parties to 
 the suit. 
 
 The cause was heard in the Vigo Circuit Court, 
 ['•'434] and a final ^decree rendered in favor of the com- 
 plainants, requir^ig Clarke to surrender up pos- 
 session to them of the oat lots, and convey the same to 
 them by deed, and also surrender possession to them of in 
 lot 286, and transfer to them, by assignment, the title-bond 
 on the proprietors of the town for a deed for the same; 
 and that Modisett should surrender up possession of in 
 lot 248, and transfer to them, by assignment, the title- 
 bond on the proprietors for a deed thereto; and that 
 Modisett and Clarke pay costs, &c. To reverse which de- 
 cree this appeal is prosecuted. 
 
 The complainants bottom their claim to the aid of a 
 Court of equity, in part, upon a charge of certain inten- 
 tional fraudulent acts of Modisett. They allege that he 
 neglected and refused to take deeds for the lots in ques- 
 tion, from the proprietors of the town, for the purpose of 
 defrauding his creditors. This charge Modisett most 
 positively in his answer denies, and accounts for the de- 
 Ifi} satisfactorily. There is no evidence to sustain the 
 charge, and the circumstances connected with the trans- 
 action go very strongly to contradict the idea of such in- 
 tention. Modisett was solvent and finally paid off his 
 debts, and was possessed of a large personal property, and 
 also a valuable house, in all amply sufficient to pay his 
 
 (511)
 
 434^435 SUPREME COURT OF INDIANA. 
 
 Modisett and Another i\ Johnson and Others. 
 
 debts; all subject to be seized and sold at any moment. 
 And the judgment, for the satisfaction of which the lots 
 in question were sold, was secured by replevin-suret}-, who 
 was solvent, and who resided in the same place, and had 
 more than a sufficiency of property to satisfy the execu- 
 tion at any moment, subject to be seized and sold when- 
 ever the sheriff pleased to take it. Hence, Modisett could 
 have neither interest nor inducement to endeavor to pro- 
 tect those lots from his creditors. 
 
 The charge of fraud being disposed of, the case pre- 
 sents for the consideration of the Court two questions. 
 First, had Modisett an interest in these lots at the time 
 of the levy and sale thereof, subject to be seized and sold 
 on an execution of fieri facias ? Secondly, if so, are the 
 complainants entitled to the aid of a Court of equity, to 
 perfect their possession and title to the same, under the 
 whole circumstances and facts of the case? 
 
 At common law, equitable interests are not the subject 
 of execution ; but the 10th section of the act for the pre- 
 vention of frauds and perjuries converts them 
 [*435] into legal estates, and a *judgmentat law is a lien 
 and they become liable to execution. Buford v. 
 Biiford, 1 Bibb, 305: Bogart v. Perry et al., 1 Johns. C. R. 
 52. This statute is copied from the English statute, and 
 only applies to those fraudulent and covinous trusts, in 
 which the cestui que trust has and enjoys the whole real 
 and beneficial interest in the land, and the trustee has the 
 mere nominal, naked, and formal legal title, vested in him 
 for the sole and only use and benefit of the cestui que trust. 
 It is clear, however, that the statute only operates upon 
 trusts declared by deeds of conveyance properly so called. 
 Such trust must arise from some deed or conveyance. As 
 if A. purchases land from B. and pays for it with his own 
 monev, and B. deeds the land to C, there is a resulting 
 trust from C. to A., because B. the vendor conveys for 
 the use of A. the vendee. Jackson v. Morse, 16 Johns. 
 Rep. 199. In such case, the statute which subjects it to 
 
 (512)
 
 NOVEMBER TERM, 1831. 435-486 
 
 Modisett and Another v. Johnson and Others. 
 
 execution and sale, attaches the instant it is levied on and 
 sold, and executes the trust and converts it into a legal 
 estate, or, in other words, strikes the name of .C. out of 
 the deed, and inserts the name of the cestui que trust, for 
 whose use the deed was made in the first instance. But 
 until the contract with B. was consummated by a convey- 
 ance, A. had no legal or executed estate entitling him to 
 be regarded as seized. His right, until it was merged in 
 the deed to C, was a mere chose in action ; and his 
 remedy, had B. refused to convey, would have been in 
 equity to compel a specific execution of the contract, or 
 by a suit at law for his damages. Per Judge Spencer, in 
 the case of Jackson v. Morse. 
 
 It is essential from the very words of the statute to the 
 contemplated trust, that it should arise from a deed or 
 conveyance. The statute never w^as intended to apply to 
 a case where the trustee was not directly seized for the 
 sole use and benefit of the cestui que trust. Bogart v. Perry 
 et ill., 17 Johns. Rep. 351 ; Botsford v. Burr, 2 Johns. C. 
 Rep. 414. After a man has purchased land with his own 
 money for his own use, and takes a conveyance to himself, 
 a subsequent purchase for him of those lands can not, by 
 any retrospective effect, produce the trust contemplated 
 by the statute. It may be a good ground for another kind 
 of relief, but it can not be that kind of a trust which the 
 statute, upon a seizure and sale under an execution, exe- 
 cutes and converts into a legal estate. The trust 
 [*436] must be "-^coeval with the conveyance, and can not 
 be raised by an after transaction. The provisions 
 of the statute are, that on such sales the land shall be held 
 and enjoyed, "freed and discharged of all incumbrance of 
 the trustee;" which at once shows, that there must be a 
 conveyance passed to some person for the use and benefit 
 of the cestui que trust, or those holding under him can not 
 have the legal title vested in them, simply by the destruc- 
 tion of the trustee's legal title. There must be either an 
 absolute legal estate, or an interest vested, known, and 
 YoL. II.— 33 (513)
 
 436-437 SUPREME COURT OF INDIANA. 
 
 Modisett and Another v. Johnson and Others. 
 
 acknowledged at law, before a judgment at law can be a 
 lien on it. A judgment at la^v is not a lien on a mere 
 equitable interest in land, and an execution under it will 
 not pass an interest, which a Court of law can not protect 
 and enforce. Bogart v. Perry et al., 1 Johns. C. Rep. 52. 
 
 The complainants have placed great reliance on three 
 cases in "Wendell's Reports, and one in Cowen's. 1. The 
 case of Forsythe v. Clark. 3 Wend. 637. This case is not 
 in its details directly in point, but the judge in his argu- 
 ment lays it down as a principle, that where the contract- 
 ing parties, after a contract for the purchase of an estate, 
 and the payment of the consideration-money, but before 
 the execution of a deed, conspire together to defraud the 
 creditors of the vendee, a Court of chancery may, on a 
 bill filed by a creditor, grant relief. As there is no fraud 
 or collusion in this case charged between Modisett and 
 the proprietors of the town of Terre Haute, at or before 
 the sale of the lots in question, the doctrine laid down in 
 the case of Forsythe and Clark is not applicable. 2. The 
 case of Jackson v. Walker et al., 4 "Wend. 462. This is a 
 case of trust within the statute, created directly by deed, 
 and for a fraudulent purpose, and therefore can not aid 
 the complainants in this case. 3. The case of Jackson v. 
 Bateman, 2 Wend. 559, This case may be thought to 
 have some bearing upon the present discussion. The 
 relief sought in the case is similar to the relief sought in 
 the one now under consideration, and Judge Marcy, in 
 laying down what he thinks the true doctrine in such 
 cases is, says that there must be such a trust as the statute 
 can execute and convert into a legal estate on which the 
 judgment can be a lien, or it is not subject to execution. 
 This is certainly the true doctrine, and it is in applying 
 that rule, the difficulties and apparently conflicting opin- 
 ions arise. 
 [*437] *The fourth and last case is Jackson v. Parker, 
 9 Cowen, 73. The decision in that case appears 
 to be in favor of the complainants ; but the learned judge, 
 
 (514)
 
 NOVEMBER TERM, 1831. 437 
 
 Modisett and Another v. Johnson and others. 
 
 in giving his opiuion, has favored us with the premises 
 from which he draws his conclusions, and thereby has en- 
 abled us to form our own judgment from the same prem- 
 ises. The opinion was delivered by Judge Savage ; and 
 he sets out bj' saying that a judgment at law is not a lien 
 on a mere equitable interest in land; and the execution 
 under it will not pass an interest, which a Court of law 
 can not protect and enforce. There must be (he says) 
 either an interest known and recognized at law, or an 
 equitable interest within the meaning of the statute. If 
 he had stopped here, he would have only reiterated the 
 uniform current of decisions on those cases, both in Amer- 
 ica and England. But he goes further, and says that an 
 equitable interest, coupled with possession, may be exe- 
 cuted and sold ; for (says he) the interest of the mort-. 
 gagor or mortgagee in possession, is bound by a judg- 
 ment and may be sold; but, out of possession, neither has 
 an interest upon which the lien of a judgment can attach. 
 The case which the judge has given, it is apprehended, 
 will not sustain the doctrine it was introduced to estab- 
 lish. In the case of a mortgage, the parties are placed 
 on peculiar grounds, growing out of the relation in which 
 they stand as it respects each other's rights. Technic- 
 ally, the legal estate would seem to vest in the mort- 
 gagee upon the execution of the mortgage, subject to be 
 defeated by a strict performance of the condition. Bat 
 in practice it is the settled doctrine in equity, and the 
 Courts of law have long since adopted the same doctrine, 
 that the mortgage is a mere security, and that the mort- 
 gagor as to all the world except the mortgagee, is the 
 real owner and a freeholder, with the civil and political 
 rights belonging to that character; that the equity of re- 
 demption is the real estate and tantamount to a fee at 
 law, until barred by foreclosure. 4 Kent's Comm. 158, 
 1.54, note a, and the authorities there cited. In New 
 York, and perhaps all the American states except one, a 
 judgment at Jaw, against the mortgagor before fore- 
 
 (.51.5)
 
 487-438 SUPREME COURT OF INDIANA. 
 
 Modisett and Another r. Johnson and Other?. 
 
 closure, is a lien on the equity of redemption, and the 
 estate is liable to be executed, and sold, subject to the 
 lien of the mortgagee. But this is not the case as 
 it respects the estate of the mortgagee. The reporter 
 has made Judge Savage say that which is directl}' 
 [*438] ^contradicted by ever}' case in the books which 
 we have seen. The decisions in New York and 
 elsewhere are quite uniform on that important subject. 
 They all say, in express and clear language, that the 
 estate of the mortgagee is not the subject of execution 
 until the title is made absolute by foreclosure. That the 
 default of the mortgagor and forfeiture of the condition 
 of the mortgage, are not sufficient to make the estate of 
 the mortgagee subject to execution. There must first be 
 an absolute foreclosure. 4 Kent's Comm. 154; Jackson 
 V. Willard, 4 Johns. Rep. 41; Blanehard v. Colburn, IG 
 Mass. Rep. 345 ; Eaton v. Whiting, 3 Pick. Rep. 484 ; Hun- 
 tington V. Smith, 4 Conn. Rep. 235; Bogart v. Perry, 1 
 Johns. C. R. 52. The Court can not perceive much anal- 
 ogy, if any, between the great principles which govern 
 mortgaged estates and these now under consideration. In 
 England, not even the equity of redemption is the sub- 
 ject of execution. 
 
 Equity can not construe a statute otherwise than a 
 Court of law; both Courts are bound b}' the same rules 
 of construction. Equity will remove impediments which 
 are in the way of legal rights, and will give redress 
 where there is a right without a remedy at law. or where 
 the legal remedy is incomplete, but can not create a right 
 unknown to the law. Bn.ford v. Buford, 1 Bibb, 305; 
 Allen v. Sanders, 2 Bibb, 94. A bond for land gives no 
 vested right to the land ; it is but a right to ask for land, 
 and may be generally specilicall}^ enforced. It is not an 
 equitable interest that the statute can execute and convert 
 into a legal estate. These bonds, bargains, covenants, 
 promises, and agreements for land, remain as they did 
 before the statute, mere choses in action which may com- 
 
 (516)
 
 NOVEMBEE TERM, 1831. 438-439 
 
 Modisett and Another v, Johnson and Others. 
 
 pel the subject in specie, or may only sound in damages. 
 They are no more the subject of execution, nor the land 
 therein described, than bonds, covenants, and contracts, 
 for specilic chattels. Thomas v. Marshall, Hardin's Rep. 
 19. 
 
 There is one other view of the subject which it may be 
 proper to notice. By the statute respecting the assign- 
 ment and negotiability of bonds and notes, these bonds 
 and covenants for land are made quasi commercial jiajper, 
 and are transferable from hand to hand by endorsement 
 thereon ; and each holder can maintain an action against 
 the maker in his own name. It can not therefore be pre- 
 sumed that, in the eye of the statute respecting 
 [*439] the ^execution and sale of trust estates, these 
 bonds and covenants can be viewed as deeds or 
 conveyances, creating a trust that the statute can execute 
 and convert into a legal estate; and upon which a judg- 
 ment at law, against each difierent holder through whose 
 hands they may pass, attaches as a lien. Such a construc- 
 tion would lead to endless difficulties, destroy the object 
 of the statute of assignments, and put out of circulation 
 a large amount oT the active and effective capital of the 
 country. 
 
 Having thus disposed of the first question, it seems to 
 be unnecessary to examine the second. But as the point 
 was ably argued by the counsel on both sides, and the 
 consideration of it pressed upon the Court with great 
 earnestness, it is due to those concerned that it should be 
 noticed. The complainants' counsel have insisted that 
 the mere inadequacy of price is not sufficient of itself to 
 set aside a contract in any case, and particularly sales at 
 auction. This is certainly correct as a general proposi- 
 tion. There is, however, a great distinction between re- 
 scinding a contract when once executed, and refusing to 
 decree a specific performance of a contract. Chancellor 
 Kent says, a Court of equity must be satisfied that the 
 claim is fair, just and reasonable, the contract equal in 
 
 (517)
 
 439-440 SUPREME COURT OF INDIANA. 
 
 Modisett and Another v. Johnson and Others. 
 
 all its parts, and founded on an udequato consideration, 
 before it will decree performance. If there be an}- objec- 
 tion on these points that is well grounded, the party will 
 be left to his remedy at law. Seymour v. Delancey et al., 
 6 Johns. C. Rep. 222. The Courts in Maryland have said, 
 that to entitle a complainant to a decree for a specific per- 
 formance, the contract must be neither hard nor unrea- 
 sonable ; but must be fair, full and honest in all its parts, 
 not only in the beginning but that the performance of it 
 must be such that it may be fairly and conscientiously re- 
 quired at the time the aid of the Court is asked. Car- 
 berry V. Tannyhill, 1 Har. & Johns. 224 ; Perkins v, Wright, 
 8 Har. & M'Henry, 324. In South Carolina, a specific 
 performance is never decreed, unless the contract be fair, 
 certain, just and equal in all its parts, and for an adequate 
 consideration. Clitheralx. Oc/ilvie, 1 Desaussure, 257r In 
 Kentucky, equity will not enforce the specific execution 
 of a contract, if it were obtained under unfair circum- 
 stances, or where there has been any unfair practice after 
 contract, nor unless the contract appears fair and reason- 
 able, nor if it be hard or unconscientious. Ed- 
 [*440] wards Y. Havdley. ^Hardin, 605; Buckner v. Grif- 
 fith, 1 Bibb, 230 ; Bowan v. Irons, 2 Bibb, 78 ; East- 
 land v.Vanarsdel, 3 Bibb, 274. In England, many of her 
 most able chancellors have repeatedly recognized the same 
 rule of decision. Lords Chancellors Somers, Maccles- 
 field, Harcourt, Talbot. Hardwicke, Rosslyn and Eldon 
 have all said that equit}' will not carr}- an unfair or un- 
 reasonable transaction into execution, but will leave the 
 party to his remedy at law. 
 
 The transaction under consideration is certainly hard 
 and unconscientious. The price paid for the lots is en- 
 tirely inadequate. It is satisfactorily proved that, at the 
 time of the sale, these lots could have been cashed for at 
 least 105 dollars, and at this time for between 500 and 600 
 dollars, and the amount paid by the purchasers was only 
 about 21 dollars. The other circumstances of the case 
 
 (518)
 
 :n'oyember term, issi. 440-441 
 
 Jenison and Others t. Graves and Another. 
 
 present the purchasers of these lots in the character of 
 cold, calculating speculators. At the time of the sale and 
 before any purchases were made, Modisett informed tlienr 
 that he had no title to the lots, and that he hoped they 
 would not bid; and after the sale and before any money 
 was paid to the sherifi', Modisett again informed them 
 that he had no title, and that he did not wish them to 
 pay money for him for nothing; and that if they would 
 relinquish their bids he would pay the amount thereof 
 to the sheriff; which proposition they refused to accede 
 to. They were not onl}' willing to see the last drop of 
 blood drawn from their neighbor's veins, but they also 
 now demand the pound of flesh. 
 
 Upon the whole view of the case, it is very clear that 
 the appellees are not entitled to the aid of a Court of 
 equity. 
 
 Per Curiam. — The decree of the Circuit Court is re- 
 versed with costs. To be certified, &c. 
 
 Kinney and Dewey, for the appellants. 
 
 Farrington and Judah, for the appellees. 
 
 Jenison and Others v. Gkaves and Another. 
 
 Implied Trust— If one man buy land with his own money, and take the 
 deed in the name of another, a trust results by implication in favor of 
 him who paid the money. 
 
 Same— Parol Proof.— The existence of a resulting trust may be 
 
 [*441] proved by parol evidence, in opposition to *the face of the deed and 
 to the answer of the trustee ; but to establish the trust, under those 
 circumstances, the clearest and the strongest testimony must be pro- 
 duced («). 
 
 EQtiiTY— Pleading and Practice— Answer.— A bill in chancery, ^vlien 
 denied by the answer, must be proved by at least two witnesses, or l\v one 
 witness and corroborating circumstances, or the complainant cnn net suc- 
 ceed (b). 
 
 Parent and Child — Wages of Child. — A father may claim the ser- 
 vices oi his children, whilst they are under lawful age and are supported by 
 
 (a) 14 Id. 62. (b) 9 Id. 132. 
 
 (519)
 
 441 SUPREME COURT OF INDIAITA. 
 
 Jenison and Others r. Graves and Another. 
 
 him. But should he, at any time, relinquish that claim, the profits of 
 his children's labor then belong to themselves, and can not be seized by 
 the creditors of the father (c). 
 
 Same — Same — Implied Trust. — If a son of full age purchase land to be 
 paid for in labor, and his father, being employed for the purpose by the 
 son, perform a part of the work ; or if the payment is to be in money, 
 the father lend his son a part of the money with which the payment is 
 made — a trust, pro ianto, will not, in either of those cases, result to the 
 fatlier. 
 
 Rights of Creditors — Property Subject to Execution. — If an execu- 
 tion-defendant have goods subject to the execution, and they be fraudu- 
 lently placed by a third person out of the reach of the execution, such 
 third person may be compelled by the execution-plaintiflf, in a Court of 
 Chancery, to account for the property. 
 
 APPEAL from the Marion Circuit Court. 
 
 Blackford, J. — This was a bill in chancery, filed by 
 Bartlett Graves and Harvey Gregg against Rufus Jeni- 
 son, David E. Wade, Samuel Jenison and Stephen Brown. 
 The cause was submitted to the Circuit Court upon bill, 
 answers, and proofs ; and that Court rendered a decree 
 against Rufus Jenison, David E. Wade, and Samuel 
 Jenison, as to a part of the complaint against them, and 
 dismissed the bill as to Brown, but without costs. The de- 
 fendants have appealed to this Court. 
 
 It is stated in the bill, that, in 1818, or 1819, Rufus 
 Jenison, one of the defendants, gave his notes to Bartlett 
 Graves, one of the complainants, for the sum of 533 dol- 
 lars; that, in 1820, he gave to Thomas Buckner, the 
 assignor of Harvey Gregg, the other complainant, his 
 note for the sum of 170 dollars ; that, soon after the giv- 
 ing of these notes, Rufus Jenison, the maker, become in- 
 solvent; that he was, at the time of his insolvency, pos- 
 sessed of a tract of land in Kentucky on which he resided, 
 but which he had previously mortgaged to David E. 
 Wade, one of the defendants, for the securit}' of a bona fide 
 debt; and that, about the time of his becoming insolvent, 
 he sold and conveyed all his interest in this land to 
 
 (c) 49 Ind. 378. 
 
 (520)
 
 :N'0V EMBER TERM, 1831. 441-442 
 
 Jennison and Others v. Graves and Another. 
 
 Wade, the mortgagee. The bill states that, in 1823, 
 when Rufus Jenison relinquished all his claim to the land, 
 Wade advanced him 100 dollars, in order that he might 
 afterwards purchase other land in Indiana ; that in the 
 
 spring of 1824, Rufus Jenison, with these 100 
 [*442] dollars, *came to this state, and purchased a tract 
 
 of land in Marion county; that, to defraud his 
 creditors, he took the title in the name of Wade ; that, 
 soon afterwards, he removed with his family from Ken- 
 tucky, settled on this land where he made valuable im- 
 provements without any contract with Wade, and became 
 possessed of considerable personal property. 
 
 The bill states that, in 1825, Rufus Jenison, to defraud 
 his creditors, executed a bill of sale of his personal prop- 
 erty to Daniel Pattingall — still keeping possession of the 
 same ; that in 1826, when an execution was levied on this 
 personal property, it was fraudulently bought in by Ben- 
 jamin Atherton with money furnished to him by Rufus 
 Jenison, in whose possession it continued to remain ; that 
 Thomas Buckner, afterwards, commenced a suit against 
 Rufus Jenison on the note for 170 dollars, and, in the 
 spring of 1827, whilst this suit was pending against him, 
 the defendant, for the further protection of his property 
 from execution, went to Cincinnati and obtained in the 
 name of his son Samuel, one of the defendants, who had 
 lately become of lawful age, a deed from Wade for the 
 land on which he, Rufus Jenison, and his family resided — 
 his son, the grantee, paying no consideration for the land, 
 and not being present when the deed was executed ; and 
 that, upon Rufus Jenison's return from Cincinnati, he 
 fraudulently sold all his personal property to his son 
 Samuel, taking from him a lease for the same property, 
 and for the land conveyed by AVade on w^hich they resided, 
 at the aimual rent of 150 dollars. 
 
 The bill states that, in October 1827, Thomas Buckner 
 recovered judgment for 187 dollars, and Bartlett Graves 
 recovered judgment for 423 dollars with interest, against 
 
 (521)
 
 442-443 SUPREME COURT OF INDIANA. 
 
 Jenison and Others v. Graves and Another. 
 
 Rufus Jenisoii, in the Marion Circuit Court; that Graves 
 also, about the same time, recovered judgment against him 
 before a justice of the peace for 164 dollars ; that an exe- 
 cution issued on the judgment of the justice in the same 
 month of October, and was levied on a variety of personal 
 propert}' in the possession of Rufus Jenison ; that this 
 property was claimed by Samuel Jenison, the right thereto 
 tried by a jury, and, with the exception of a brown mare 
 found to belong to the execution debtor, Rufus Jenison ; 
 that the pi'operty, the mare excepted, was then sold by 
 virtue of the execution of Samuel Jenison, and the amount 
 of the sale paid over by the constable to Samuel 
 [*443] Jenison, as *landlord of the premises, in part dis- 
 charge of two quarters' rent alleged to be due him 
 from his father; that the brown mare, found by the jury 
 to belong to Samuel Jenison, and which had been deliv- 
 ered to him by the constable, was in reality the property 
 of Rufus Jenison, and liable to the payment of his debts. 
 The bill states that the judgment obtained by Buckner 
 against Rufus Jenison, is, by assignment, the property of 
 Gregg, one of the complainants ; that, in 1828, the com- 
 plainants. Graves and Gregg, took out executions on their 
 judgments rendered in the Marion Circuit Court against 
 Rufus Jenison; and, there bei'ng no goods and chattels, 
 the executions were levied on the real estate on which 
 Rufus Jenison resided, and which had been conveyed to 
 his son by Wade ; and that the rents and profits being 
 first ofl:ered and not selling, the fee simple in the land was 
 sold by the sherifi'to the complainants for the sum of 200 
 dollars. 
 
 The bill further states, that, in the spring of 1826, Sam- 
 uel Jenison, at the request and as the agent of his father, 
 Rufus Jenison, purchased of George Dolbair a tract of 
 land in Marion county for 125 dollars; that the payment 
 was made with the property-, the money, and the labor of 
 Rufus Jenison, whilst Samuel was a minor, living with 
 his father; and that the deed was taken in Samuel\' 
 
 (522)
 
 NOVEMBER TERM, 1831. 443-444 
 
 Jenison and Others v. Graves and Another. 
 
 name, to evade the payment of the debts due from Rufus 
 Jenison to the complainants. The bill further states that 
 Samuel Jenison has converted to his own use the per- 
 sonal property which he fraudulently bought of and 
 leased to his father; that he has concealed other personal 
 property of Rufus Jenison's from his creditors; and that 
 he has been in the possession, and enjoyed the rents and 
 profits of the land purchased in the name of Wade, since 
 Wade conveyed the same to him. The bill further states 
 that, in November, 1826, Rufus Jenison purchased from 
 tlie United States, and paid for, two other tracts of land 
 situated in Marion county; but, to defraud his creditors, 
 took the title in the name of Stephen Brown; that these 
 lands are the bona fide property of Rufus Jenison, and in 
 his possession; and that Stephen Brown has, since the 
 date of the complainants' judgments, kept concealed in 
 his possession personal property belonging to Rufus Jen- 
 ison, for the purpose of fraudulently protecting it from 
 
 the complainants' executions. 
 [*444] *The prayer of the bill is, 1st, That the land 
 
 purchased by Rufus Jenison of the United States, 
 in the name of Wade, may be adjudged to have been 
 Rufus Jenison's at the time of the sheriff's sale to the 
 complainants; that that sale by the sheriff may be con- 
 firmed, and the complainants put into possession of the 
 land; and that Samuel Jenison maybe obliged to account 
 for the rents and profits. 2d, That the land bought by 
 Samuel Jenison of George Dolbair, and that bought by 
 Rufus Jenison of the United States in the name of 
 Stephen Brown, ma}' be adjudged to be the property of 
 Rufus Jenison, and made subject to the judgments of the 
 complainants. 3d, That Samuel Jenison and Stephen 
 Brown may be compelled to account for the personal 
 property of Rufus Jenison, fraudulently protected by 
 them from the complainants' executions. 
 
 To this bill of complaint, the defendants have aU filed 
 their answers. 
 
 (528)
 
 444-445 SUPREME COURT OF INDIAKA. 
 
 Jenison and Others v. Graves and Anotlier. 
 
 The answer of Rufus Jenisoii is as follows: lie ad- 
 mits that he gave the notes to the complainants, and that 
 judgments were obtained upon them, as set out in the 
 }>ill. lie states that he formerly owned a farm in Ken- 
 tucky, which, in 1816, he mortgaged to David E Wade, 
 one of the defendants, to secure tlic payment of 1,100 or 
 1,200 dolhirs, borrowed money; that, in 1810, lie sohl the 
 I'arin to Wade tor 000 dollars, besides the mortgage money ; 
 that he then leased tiie farm of Wade for four years at 240 
 dollars per annum, which was to be re-conveyed to iiim, 
 should he, at the end of the term, pay Wade 1,700 dollars 
 besides the rent; that, in 1823, being unable to redeem 
 the land, he gave up the possession to Wade, and can- 
 celled the agreement to re-convey, in consideration of 
 Wade's releasing certain rents and other demands due to 
 him. lie says that, at the time ho was coming to In- 
 diana, he received from Wade 100 dollars, with a request 
 to purchase for Wade 80 acres of land; that he bought' 
 the land accordii]gly, and afterwards came and occupied 
 it with the permission of Wade as a tenant at will; that 
 he had no knowledge at the time he received the money, 
 or at the time he took possession of the land, as to what 
 disposition Wade intended to make of the property. He 
 says that his son, Samuel Jenison, one of the defendants, 
 was 21 years of age on the 25th of September, 1826; that 
 
 lie had certain perquisites arising from the defeiid- 
 ['i'445] ant's farm in Kentucky, and that ^when he came 
 
 to this state, the defendant gave him his time, 
 and the privilege of transacting business for himself. II« 
 says that, in the spring of 1827, he applied to Wade, at 
 Cincinnati, to ascertain whether he would not soil the 
 land occupied by the defendant to his son Samuel ; that 
 Wade refused to sell it to Samuel, but said he would give 
 it to him; and that Wade accordingly executed a deed 
 for the land to Samuel Jonison, and delivered the same 
 to the defendant, wlio afterwards delivered it to the 
 grantee. 
 
 (524)
 
 NOVEMBER TEUM, 1831. 445-440 
 
 .Iinii-dii ami < (llicrs i. ( iravrs iind Aimdn 
 
 Tills (Icfbiidiiiil, Kiit'iis Jonisoii, dciiicH Ili:it ho eitlicr 
 |iiii'cli;i.-.('i|, (ir r(M|iic-,t ('(1 liis hoii SiiiiiiU'l to piircliiisc, any 
 IiiikI of (ieorsjrc! Dolbair. On the ('.onli-ary, lie uvlth (liat 
 llic |)nrcliasc was iiia<l<' ai^aiiist his Uflvicc and ronscid ; 
 that Ik' rnrnishcd no [lart of the coiiHidd'ation, and has no 
 interest ill t he j)io|'ierty, Iludcniesall kiiowlcMlt^t' dl' oik? 
 (d th(! tracts of hind, (diargod to havelx-en honi^ht liy liini 
 in the name of Steplicn lirou'ii, one ol t he (hd'cnchints ; 
 hilt he aihiiils that lie did jiiiridiase, in lirowiTs name, thi; 
 other tract (h-scrihcd in th(.' hilh He siiys, liowevei', that 
 lie |tiireli!iKed it niercdy as the ugcnt oC Hi-own, and i»ai<l 
 lor it with IJrown's money; that In; has no Interesl in it, 
 and never had it in j)osHeHHi<)ii. He ileni(!H that any ol his 
 IKM'soTijil [irojierty was ever eom-ealed hy Brown, for the 
 jiiifjiose of scouriiii;- it from execution. This (hd'endanj 
 admits, that in Ajjril, 1827, he hniHed of IiIh son Sainiiel 
 the land conveyed hy Wade, and also the personal pro)»- 
 orty mentioiK!*! in the hill; that Samuel had previonsly, 
 on the same day, hoiii^ht this poi'HOnal property ol' him ; 
 and that it remaiiu'd in the defendant's poHseHsion until it 
 was l(!vied on and sold hy virtue f)f an execntir)n in favor 
 of one ot't he eomplai mints. lie admits, also, that, in IHiJ,''), 
 he Hold the moHt of liis personal [)roperty to I)ani(d I'at- 
 tingall ; and, at the same time, ke[)t it in IiIk own posscH- 
 Bion ; and tliat afterwards, vvlieii an execution agaitiHt the 
 defendant in favor of one of the ooniplainants, was levied 
 on this [iroporty, Tienjamin Atherton, with the defVmdant's 
 nion(!y, at his recpiest, })Oiiifht it in for him. 
 
 The answr-r of David I']. VV^ade is as follows: This de- 
 f<'ndant niak(;s the sam<! answcir with Rufus Jenison, as to 
 the d(d)t due to him from Jenison, as to tin! inortgag(! 
 given to him for its security, and as tr) his siihsefpient pur- 
 chase of Jenison's farm. He says that In; would 
 ['^■44(>] have rather liad a return of the money *lent to 
 denison, than a conveyance of the farnn ; l)ut that* 
 it was inqtossihle for .jenison to make payment. He 
 states that lie furnished Rufus. leiiison 100 dollars to })ny for
 
 446 SUPREME COURT OF INDIANA. 
 
 Jenison and Others v. Graves and Another. 
 
 liim, this defendant, the hxnd mentioned in the bill; that 
 Jenison niade the purchase for liim as his agent; and that 
 the purchase-money for this land was allpaidby him, this 
 defendant, without any contract with Jenison, and with- 
 out Jenisou's paying or agreeing to pay any part of it. 
 He states further, that he intended, at the time of the 
 purchase, to make a present of the land in question to 
 Samuel Jenison ; that he has since executed and delivered 
 a deed to him for it; and that neither Rufus Jenison nor 
 Samuel Jenison, ever paid him or contracted to pay him 
 one cent for this land. 
 
 The following is the answer of Samuel Jenison : This 
 defendant's statement is the same with Rufus Jenison's 
 respecting his age, his privileges in Kentucky, and his 
 right to receive the profits of his labor and trade for him- 
 self, given to him by his father since their removal to this 
 state. He makes a similar statement, also, to that of his 
 father, relative to Wade's execution of a deed to him for 
 the land mentioned in the bill, without his paying any 
 consideration for the same. He says that, in October, 
 1826, he purchased of George Dolbair the tract of land 
 mentioned in the bill, for the sum of 125 dollars, and has 
 since paid for it with his own labor and funds. He sets 
 out particularly the various items of payment, and, among 
 other things, the payment of 50 dollars by clearing land 
 for Dolbair. He says that he was 21 years of age before 
 he made this purchase; that it was not made at the in- 
 stance of his father, but in opposition to his advice ; and 
 that his father paid no part of the consideration. This de- 
 fendant admits, that the personal property mentioned'in 
 the lease to his father, except a brown mare, was pur- 
 chased by him of his father on the same day on which the 
 lease is dated ; that this property, the mare excepted, was 
 in possession of his father both before and after the pur- 
 chase and lease ; that the same continued in his father's 
 possession until it was levied on and sold by virtue of an 
 execution, in favor of one of the complainants against his 
 
 (526)
 
 NOVEMBER TERM, 1881. 446-447 
 
 Jenison and Others i: Graves and Another. 
 
 father; and that the constable paid over the proceeds of 
 
 the sale to the defendant as landlord of theprem- 
 
 [*447] ises. He says that the *brown mare, alleged in the 
 
 bill to be his father's, belongs to himself, and was 
 
 bought by him of John S. Monltin. 
 
 The answer of Stephen Brown, as to the purchase of 
 land for him b}^ Rufus Jenison, and as to his concealment 
 of Jenison's goods, is the same with the answer of Rufus 
 Jenison. He denies that Rufus Jenison, or any of his 
 famil}', ever had any interest, legal or equitable, in the 
 land bought by him for this defendant; and he denies, 
 also, that he ever concealed any of Rufus Jenison's prop- 
 erty from his creditors. 
 
 After the filing of these answers, the complainants filed 
 an amendment to their bill, which was answered by three 
 of the defendants. It is unnecessary, however, to notice 
 particularly these latter proceedings, as they furnish no 
 additional matter material to the decision of the cause. 
 
 The first question which this case presents for our con- 
 sideration is: Whether the land purchased in the name 
 of Wade, and conveyed by him to Samuel Jenison, is sub- 
 ject to the judgments of the complainants against Rulus 
 Jenison ? 
 
 The bill admits that the legal title to this land was 
 vested in Wade by a patent from the United States. The 
 complainants contend, however, that the land was paid 
 for with the money of Rufus Jenison; and that, there- 
 fore, the beneficial interest and real ownership are in him. 
 The law is admitted that where one man buys land with 
 his own money, and takes the deed in the name of an- 
 other, a trust results by implication in favor of him who 
 paid the money. Boyd v. 31 'Lean, 1 Johns. C. R. 582. 
 It is only the question of fact, in this case, as to whose 
 money was paid, that is in dispute between these parties. 
 The answers of Wade and Rufus Jenison deny the trust, 
 and aver the land to have been bought with the money 
 of Wade. The answer of AVade places the case on very 
 
 (527)
 
 447-448 SUPREME COURT OF INDIANA. 
 
 Jenison and Others v. Graves and Another. 
 
 Strong ground against the complainants. It is even said 
 by a respectable writer to be doubtful whether the an- 
 swer of the trustee denying such a trust, can be contra- 
 dicted by parol testimony. Sugden on Vendors, p. 415. 
 It is decided in New York, however, that parol evidence 
 is admissible under these circumstances; but the Chan- 
 cellor says that if the point were res integra, he would not 
 admit the evidence. Boyd v. 3f'Lean, 1 Johns. C. R. 
 582. The claim, in this case, is opposed by the face of 
 
 the patent, and by the answer of the trustee. 
 [*448] These, we agree, *may be contradicted by parol 
 
 evidence, but to succeed against them, the clear- 
 est and the strongest testimony must be produced. 
 
 The defendants' counsel inquired, in the argument, 
 whether Rufus Jenison could have established a trust in 
 this case against Wade, and contended that if he could 
 not his creditors can not. We have looked into the rec- 
 ord before us with a view of finding an answer to this 
 question; but our search has been in vain. The com- 
 plainants say that the purchase-money belonged to Rufus 
 Jenison. Where, we ask, is the evidence of that asser- 
 tion? The onus jyrobandi Vies on the complainants. There 
 have been, to be sure, a great number of witnesses exam- 
 ined, but there is not one of them who pretends to any 
 direct knowledge on the subject. The complainants rely 
 entirely on presumptive proof. They show that Rufus 
 Jenison was the actor in delivering the money to the re- 
 ceiver of the land-oflice; that he settled on the laud with 
 his family soon after the purchase; that he made consid- 
 erable improvements, as if the land were his own. They 
 show that AVade, three years after the purchase, con- 
 ve\^ed the land, without consideration, to the son of 
 Rufus Jenison ; and that Rufus Jenison, after this, exe- 
 cuted a relinquishment of ground for a road through tlie 
 land. They show, also, several fraudulent attempts of 
 Rufus Jenison, whilst living on the premises, to secure 
 his personal propert}' from his crctlitors. From tliose 
 
 (528)
 
 ITOVEMBER TERM, 1831. 448-449 
 
 Jenison and Others v. Graves and Another. 
 
 circumstances we are called on to presume that Rufus 
 Jenison paid his own money for this land, and that it 
 therefore is his property. 
 
 In opposition to this circumstantial proof, AYade relies 
 on his patent from the United States for the land; and 
 also upon his answer, in which he expressl}' denies the 
 trust, and avers that he bought the land with his own money, 
 through the agency of Rufus Jenison. 
 
 With this statement of the principal grounds relied on 
 by the parties, we refer again to the question, Could Rufus 
 Jenison, under these circumstances, have established a 
 trust-estate in the premises against Wade? We certainly 
 think not. Even in ordinary cases, where the material 
 allegation of the bill is denied, circumstances like those 
 here relied on would of themselves be of no benefit to the 
 complainant. A bill, when denied, must be proved 
 [*449] by at least two witnesses, or by one witness *and 
 corroborating circumstances. Smith v. By^ish, 1 
 Johns. C. R. 459; Stat. 1824, p. 285; Green et al. v.Var- 
 diman et al., 'Nov. term, 1830. There is not, in the pres- 
 ent case, a single witness directly proving the material 
 allegation in the bill; and it is impossible, therefore, that 
 the circumstantial proof relied on could have shaken the 
 legal title of Wade, and the positive denial of the trust 
 contained in his answer. If, then, the testimony be not 
 sufficient to enable Rufus Jenison to establish the trust 
 in question, a fortiori, it can not enable the complainants, 
 his creditors, to do so. In deciding the title of Wade to 
 be valid, we put an end to the complainant's claim to the 
 land under consideration. Wade, as the legal and bene- 
 ficial owner, had a right to make a present of the land to 
 Samuel Jenison, and" the latter has a right to hold it, with- 
 out either of them being accountable to the creditors of 
 Rufus Jenison. 
 
 The next question to be examined is,Whether the land 
 purchased by Samuel Jenison from George Dolbair is sub- 
 ject to the judgments against Rufus Jenison? 
 Vol. II.— 34 (529)
 
 449-450 SUPREME COURT OF INDIANA. 
 
 Jenison and Others v. Graves and Anotlier. 
 
 The charge is, that this land was bought by Samuel 
 Jenison, a minor, for his father, Rufus Jenison ; and that 
 tlie latter pa.id for it, and is the real owner. This is op- 
 posed, 1st, by the deed from Dolbair to Samuel Jenison, 
 in which the purchase-money is stated to have been paid 
 by the grantee; and 2d, by the express denial of these 
 defendants. The answer of Samuel Jenison avers, that 
 he bought the land for himself, after he became of lawful 
 age, in opposition to his father's advice; and that he paid 
 for it with his own labor and funds. The complainants 
 produce no evidence that can, in the slightest degree, 
 affect this defence. They principally rely upon some 
 work, done by two of Rufus Jenison's minor sons, in aid 
 of Samuel Jenison, whilst he was clearing land for Dol- 
 bair, in part payment for the land previously purchased. 
 These young men who thus assisted their brother, it is 
 proved, had the permission of their father to work and 
 trade for themselves ; and they were employed by their 
 brother Samuel to assist him in the peformance of this 
 work, and were paid for their labor by him. No title, 
 surely, can be claimed for Rufus Jenison to any part of 
 this land, on the ground of his having paid a part of the 
 consideration by this labor of his minor sons. 
 
 The father, it is true, may claim the services of 
 [*450] his children, *whilst they are under lawful age, 
 and are supported by him. 1 Bl. Comm. 453. 
 But, we conceive, he may relinquish that claim at any 
 time, and when he does, the prolits of his children's labor 
 belong to themselves. The property acquired by a minor 
 son, in such a case, is as much his own, as if it were a 
 legacy bequeathed to him ; and it can not be seized by 
 the creditors of the father. Besides, these young men 
 were employed by their brother, Samuel Jenison, and per- 
 formed the labor for him; and even if the father were 
 entitled to the profits of their work, still he cculd have 
 no claim for the same l)ut on the person who had em- 
 ployed them. It would have been the same case had 
 
 (530)
 
 NOVEMBER TERM, 1831. 450-451 
 
 Jenison and Others v. Graves and Another. 
 
 Rufus Jenison himself been hired by his son Samuel to 
 do this work, in part payment for the land; or had he 
 even, bona fide, lent Samuel a sum of money to assist him 
 in the payment. In neither of these cases would the 
 father be considered as paying part of the purchase- 
 money, from which a trust jjro tanto could result to him. 
 His claim would be alone on his son for the work done or 
 the mone}' lent. 
 
 We conclude, therefore, that the complainants have na 
 claim on the land purchased of Dolbair by Samuel Jenison. 
 
 The third question in this cause is, Have the complain- 
 ants any claim on the land bought in the name of Stephen 
 Brown ? 
 
 There are two tracts of land charged in the bill to have 
 been purchased by Rufus Jenison with his own money, 
 and the titles to have been fraudulently taken by him in 
 the name of Brown. This charge is denied by the an- 
 swers of these defendants, Rufus Jenison and Brown. Of 
 one of the tracts of land they have no knowledge. The 
 other was bought for Brown, according to the answers, 
 in the name and with the money of Brown, by his agent, 
 Rufus Jenison. To avoid the statement in the answers, 
 viz., that Brown furnished the purchase-money, the com- 
 plainants say, the money was lent by him to Rufus Jeni- 
 son, and has been repaid to him by the labor, for a year, 
 of one of the minor sons of Rufus Jenison. The only 
 proof on this subject is, that soon after the purchase, 
 Rufus Jenison, Junior, a minor son of Rufus Jenison; did 
 work a year for Brown. But it is also in evidence, that 
 this labor was for the young man's own benefit, he hav- 
 ing, at the time, a general permission from his father to 
 work for himself. The contract between young Jenison 
 and Brown was, that the former should receive 
 [*451] *froiB. the latter 100 dollars for the year's w^ork, 
 to be paid in land or money. Brown, afterwards, 
 paid the young man in money for the work he had done, 
 who gave about one-half of the amount to his father, 
 
 (581)
 
 451 SUPREME COURT OF INDIANA. 
 
 Jenison and Others v. Graves and Another. 
 
 Rufus Jenison, and expended the other half for clothes 
 and other necessaries for himself. This transaction is, 
 therefore, very satisfactorily explained; and the inference 
 which the complainants would draw from it, viz., that the 
 money was Rufus Jenison's which paid for the land 
 bought in Brown's name, has no foundation in the facts 
 of the case. 
 
 We come now to the last point in this tedious cause. 
 The bill charges Samuel Jenison and Stephen Brown, 
 with concealing, or converting to their own use, the per- 
 sonal property of Rufus Jenison, for the purpose of de- 
 frauding his creditors. There is no doubt, that if these 
 defendants have fraudulently placed any of the goods of 
 Rufus Jenison out of the reach of the complainants' execu- 
 tions, the}' may be compelled to account for the property 
 in a Court of chancery. Hendricks v. Rohinson, 2 Johns. 
 C. R. 283, 296. This part of the bill, however, like the 
 other parts ot it already noticed, is not sustained by the 
 evidence. The charge is denied, in their answers, by these 
 defendants. Brown and Samuel Jenison. There is no 
 evidence whatever, on this subject, against Brown. It 
 appears, with respect to Samuel Jenison, that, about the 
 time he became of age, he bought a mare of Moultin, 
 which he kept on the farm occupied by his father. An 
 execution in favor of one of the complainants was levied 
 on this mare, but. on a trial of the right of property, she was 
 adjudged to be Samuel Jenison's. The answer also of 
 Samuel Jenison, avers the mare to be his own, and to 
 have been paid for by himself; and there is no proof to 
 the contrary. It further appears that Samuel Jenison did, 
 at one time, buy the personal property belonging to his 
 father, and then lease it to him, with the fraudulent intent 
 of placing the same beyond the reach of executions against 
 liis father. The scheme, however, did not succeed. The 
 })roperty was afterwards levied on and sold, bv virtue of 
 an execution in favor of one of tlie complainants against 
 Rufus Jenison. The contemplated fraud, therefore, failed 
 
 (532)
 
 NOVEMBER TERM, 1831. 452 
 
 Jenison and Others v. Graves and Another. 
 
 in its purpose ; and,' of course, the complainants sustained 
 no injury by it. It is true, the proceeds of this sale 
 [*452] appear to have been afterwards paid over by *the 
 officer to Samuel Jenison, for rent due to him as 
 landlord of the premises on which the debtor lived. But 
 as to that, no fraud was proved. Samuel Jenison was, 
 as has been already shown, the bona fide owner of the 
 farm on which his father lived, and had a right to claim 
 the proceeds of the execution sale, in payment of the rent 
 due to him. 
 
 There is clear proof of fraudulent purchases of Rufus 
 Jenison's personal property by Pattengall and Atherton, 
 as charged in the bill ; but it is not shown that these 
 fraudulent transactions benefited any of the defendants, 
 or injured either of the complainants. The property, after 
 these purchases, continued, as before, in Rufus Jenison's 
 possession ; and was subsequently sold, on an execution 
 against him, issued by one of the complainants. 
 
 "We have now gone through the whole of this cause, and 
 are satisfied that neither the land purchased for Wade by 
 Rufus Jenison — nor the land purchased for himself by 
 Samuel Jenison — nor the land purchased for Brown by 
 Rufus Jenison — is subject to the judgments of the com- 
 plainants against Rufus Jenison. We are also satisfied, 
 that no personal property has been fraudulently protected 
 from the complainants' executions against Rufus Jenison, 
 either by Samuel Jenison or by Brown. The opinion of 
 this Court, therefore, is — that the complainants have no 
 foundation for their bill ; and that the same should have 
 been dismissed by the Circuit Court, at the costs of the 
 complainants. 
 
 Per Curiam. — The decree is reversed with costs. Cause 
 remanded to the Circuit Court, with directions to dismiss 
 the bill, &c. 
 
 Broum, Morrison and Casivell, for the appellants. 
 
 Fletcher and Gregg, for the appellees. 
 
 (533)
 
 452-453 SUPREME COURT OF INDIANA. 
 
 Doe, on the Demise of Brown and Others, v. Owen. 
 
 Doe, on the Demise of Brown and Others, i'. Owen. 
 
 Ejectment — Plaintiff — Costs — Practice. — If, in ejectment, there be a 
 verdict and judgment for the defendant, the judgment for costs must be 
 entered against the nominal plaintiff, and not against the lessor. 
 
 Same — Amendment of Transcript. — But a judgment in such case, against 
 the lessor, being defective only in form, maybe amended on motion 
 
 [*453] in the Court below. Even after the cause is removed by -writ of 
 
 error, the proceedings in the Supreme Court will be stayed, on 
 
 motion, till the amendment can be made ; and, after the amendment, a 
 
 new transcript may be obtained, on suggestion of diminution, and the 
 
 judgment affirmed (a). 
 
 ERROR to the Posey Circuit Court. 
 
 Stevens, J. — This was an action of trespass and eject- 
 ment, brought by the plaintiff in error against tlie defen- 
 dant in error, to recover the possession of certain lands !=et 
 forth and described in the declaration. The parties entered 
 into the common consent rule, and an issue was joined 
 on the plea of not guilty. A jury trial was had, and a 
 correct and resjular verdict found in favor of the defend- 
 ant; on which the Court rendered judgment in favor of 
 the defendant, that he should recover of the lessors of the 
 plaintiff his costs, &c. To reverse this verdict and judg- 
 ment this writ of error is prosecuted. 
 
 Several errors are relied on by the plaintiff, but we 
 think none are well taken except the last one, which is, 
 that the judgment should have been against the nominal 
 plaintiff, and not against the lessors of the plaintiff. This 
 error is well taken ; the judgment should have been 
 against the nominal plaintiff and not against the lessors 
 (1). This being mere matter of form, the defendant 
 might have had it amended, on motion, in the Court be- 
 low, even after the transcript was transmitted to this 
 Court. And the amendment being in the form of the 
 judgment only, this Court would have stayed the pro- 
 ceedings, on motion, until the amendment could have 
 
 (a) 40 Ind. 263 ; 41 Id. 543. 
 
 (534)
 
 NOVEMBER TERM, 1831. 453-454 
 
 Scott V. Mortsinger. 
 
 been made in the Court below; a diminution could then 
 liave been alleged, and a transcript of the amended record 
 brought up on certiorari, and a reversal of the judgment 
 have thus been prevented (2). The defendant has not 
 thought proper to take that course, and we must act 
 upon the record as it stands. 
 
 Per Curiam. — The judgment, as to the lessors, is re- 
 versed. Cause remanded, &c. 
 
 Crawford and Hall, for the plaintiff. 
 
 Judah and Battell, for the defendant. 
 
 (1) The law is now otherwise. By a late statute, the defendant in ejec- 
 ment, if the judgment be in his favor, may take a judgment for costs against 
 the lessor of the plaintiff. Stat. 1833, p. 113. Vide note to Eaton v. Bene- 
 field, ante, p. 54. 
 
 (2) Vide note to Sanger, Advi'r. v. Walker etai, vol. 1, of these Rep. 2ol. 
 
 [*454] *ScoTT V. Mortsinger. 
 
 Malicious Prosecution — Perjury — Evidence. — Case by A. against B. 
 Counts in malicious prosecution for perjury, and in slander for words 
 charging the same crime. Plea, that A. had committed the perjury al- 
 leged. Held, that B. might prove, on trial, that A. had given advice as 
 to the best mode of commencing the suit against B. in support of which 
 A. was said to have afterwards committed perjury ; and might also prove 
 that A. had received information, before he gave his evidence, tending 
 to show the want of any foundation to the suit against B. 
 
 Same — Defence — Probable Cause. — Held, also, that the defendant, under 
 the plea, in this case, might show that there was a probable cause for his 
 prosecution against the plaintiff. 
 
 Perjury — What. — If a witness, with an intention to deceive the jury, 
 swear so as to make an impression on their minds that a fact material in 
 the cause is different from what it really is, and from what he knows it 
 to be, he is guilty of perjury. 
 
 Presumption — Action of Court. — If, after the examination of a witness 
 is closed, his re-examination be asked for and refused, this Court will 
 presume such refusal to be correct, unless the records show that there 
 was a good cause for the re-examination. 
 
 Slander — Malice — Evidence. — Tlie plaintiff, in the above-mentioned 
 cause, in order to show malice in the defendant, had a right to prove 
 
 (535)
 
 454-455 SUPREME COURT OF INDIAIJ^A. 
 
 Scott V. Mortsinger. 
 
 that the slanderous words, charged in the declaration, had been spoken 
 after, as well as before, the commencement of the suit. 
 
 ERROR to the Washington Circuit Court. 
 
 M'KiNNEY, J. — Trespass on the case. The declaration 
 contains four counts: two charging a maUcious prosecu- 
 tion, and two in slander. The counts for a malicious 
 prosecution are founded upon the plaintiff's arrest and 
 acquittal on a charge of perjury, said to have been com- 
 mitted on the trial of a cause before a justice of the peace, 
 in which Jacob Laughehour was plaintiff, and the defend- 
 ant, John Humphrey, Albert Lamb and John Trow- 
 bridge, were defendants; those in slander, on a charge of 
 perjury, A special plea of justification was filed to the 
 whole declaration, and a verdict and judgment were ren- 
 dered for the defendant. A motion for a new trial was 
 overruled, and two several bills of exceptions were taken 
 to the opinion of the Court. 
 
 The plaintiff in error assigns several reasons for revers- 
 ing the judgment. 
 
 1. " The Court erred in permitting, for the purpose of . 
 proving maUce, in the plaintiff' toward the defendant, 
 several witnesses to state that the plaintiff' had advised 
 Laughehour to sue the defendant. Lamb, Humphrey and 
 Trowbridge, all in one suit for the purpose of preventing 
 
 one being a witness for the other. The plaintiff" 
 [*455] contends that this was dehors *the issue and inad- 
 missible. The plea charged the plahrtiff""with per- 
 jury. Collateral facts are admissible to prove intention, 
 malice, or guilty knowledge. Where the intention does 
 not a[)pear from the transaction itself, it must be inferred 
 from other facts and circumstances. Evidence of the 
 mind and intention is afforded by the general conduct. 
 2 Stark, on Ev. 378, 382. Corrupt intention is one of the 
 constituents of the crime of perjury. In the admission 
 of this evidence it does not appear that the Court erred. 
 
 2. "The Court permitted Humphrey, who was one of 
 the defendants in the suit before the justice of the peace, 
 
 (530)
 
 NOVEMBER TERM, 1831. 455-456 
 
 Scott r. Mortsinger. 
 
 to prove that he and the defendant, Mortsinger, told the 
 plain tift' when he came to look at the tree, and the situa- 
 tion of the heifer under it, that the heifer was not there 
 when the tree was felled." The action before the justice 
 of the peace was brought to recover damages for the value 
 of a heifer, charged to have been killed by the defend- 
 ants. Upon an indictment against the plaintiff for the 
 offence charged in the plea, Humphrey would be a com- 
 petent witness. To sustain such indictment, it would be 
 necessary to establish the corrupt intention. Circum- 
 stances showing it would be admissible. We think the 
 evidence was for the jury. 
 
 3. It is assigned for error, that the Court refused to 
 instruct the jury "that the question of probable cause — 
 that is, whether Mortsinger, the defendant, had an}' prob- 
 able cause to prosecute Scott, the plaintiff, for perjury — 
 does not arise in the present case, and the jury have noth- 
 ing to do with it, inasmuch as the defendant had pleaded 
 justification to the whole declaration." The plaintiff has 
 relied, with much confidence, upon the refusal of the 
 Court to give this instruction. We will examine the 
 principle for which he contends. Malice, and tlie want 
 of probable cause, must both be established in an action 
 for malicious prosecution. White v. Dinghy, 4 Mass. Rep. 
 433 ; Lindsay v. Lamed, 17 ib. 190. This is said to result 
 as well from public convenience as from policy. Offend- 
 ers would not be prosecuted if acquittal was attended with 
 danger. A well-founded suspicion of guilt in the prose- 
 cution of an oftender, is a protection against damages. A 
 prosecutor is protected by the law, however malicious his 
 
 private motives may have been, provided he had 
 [^456] probable cause. 2 Stark on Ev. 910. *Under the 
 
 general issue, a defendant may justify the proceed- 
 ings had against the plaintift", and show that he had proba- 
 ble cause. 2 Phillips on Ev. 115. When he meets the 
 case by a special plea of justification, affirming the plain- 
 tiff to be guilty of the crime for which he was prosecuted, 
 
 (537)
 
 456 SUPREME COURT OF INDIANA. 
 
 Scott I. Mortsinger. 
 
 the burthen of proof devolves upon him. A failure, how- 
 ever, to sustain the plea, and the want of probable cause, 
 present separate and distinct questions. The first relates 
 to the pending action, and the latter to the grounds of the 
 prosecution. As the defendant, under the general issue, 
 could justify the proceedings and show that he had proba- 
 ble cause, it would seem that it could also be done under 
 a special plea. The position the plaintiff has assumed is 
 certainly too broad. The jury to whom such a case is 
 submitted, in giving it consideration, must have their at- 
 tention fixed upon the character of the charge. If, upon 
 such consideration, it should appear there was probable 
 cause, it would be their duty to find for the defendant. 
 "We think the case of Sterling v. Adams and others, 5 Bay, 
 411, sustains the Court below, in refusing to give the in- 
 structions. 
 
 The 4th error is directed to the following instructions 
 given to the jury. 1. "That if the jury believe that the 
 plaintiff swore on the trial set out in the plea, so as to 
 make an impression on the jury different from what the 
 facts in the case really were and he knew them to exist 
 differently from what he represented them to the jury, 
 and intentionally intended to deceive the jury in giving 
 his testimony in the matter set out in the plea of the de- 
 fendant, he is guilty of perjury. 2. That if the plaintiff' 
 kept back anything which was known to him in the 
 matter set forth in the plea, and swore so as to make a 
 different impression from what the facts, as known to 
 him, would have made if disclosed, and he did so, or swore 
 in a manner above knowingly, it is perjury." These in- 
 structions, taken together, amount to the proposition, 
 that if the plaintiff, on the trial before the justice of the 
 peace, swore falsely in fact and corruptly and wickedly 
 against his better knowledge, he was guilty of perjury. 
 The instructions, although not concise, constitute the 
 definition of the crime. The Court does not appear to 
 have applied any part of the testimony to the specific 
 
 (588)
 
 NOVEMBER TERM, 1831. 456-457 
 
 Scott V. Mortsinger. 
 
 charge in the plea. If testimony had been introduced 
 inapplicable -to the issue, its exclusion would not have 
 been in conflict with the instructions thus given. 
 [*457] *Error is also said to have intervened by the 
 Court's refusal to permit a witness to be called 
 back for re-examination who had retired. The record 
 does not show the points on which it was wished that the 
 witness should be re-examined. We are therefore unable 
 to say whether the testimony was material or not. In 
 the absence of the ground upon which it acted, we pre- 
 sume that the Circuit Court acted agreeably to a sound 
 ai d correct view of the case. There must be some limi- 
 tation to the examination of a witness. After the exam- 
 ination and dismissal of a witness, occasions may occur 
 which would justify a re-examination. The case of Cur- 
 ren v. Connery, reported in 5 Binney, 488, presents such 
 an one. The record, in that case, disclosed the point to 
 which the re-examination was directed. It was material 
 to the issue. 
 
 The last error assigned is the rejection of evidence that 
 the defendant, both before and since the institution of the 
 action, had spoken of the plaintiff the same slanderous 
 words laid in the declaration. It is settled that to show 
 the malicious motive of the defendant, a plaintift" may give 
 in evidence words that are actionable, though not speci- 
 fied in the declaration, and although they were spoken 
 subsequently to the words declared upon. 2 Stark, on 
 Ev. 869. The plaintiff' wished to prove the speaking of 
 the words declared upon, both before and after the insti- 
 tution of the suit. We think this should have been per- 
 mitted. Under the general issue this testimony would 
 have been legal. It is not excluded by the special plea. 
 For this error the judgment must be reversed. 
 
 Per Curiam. — The judgment is reversed, and the ver- 
 dict set aside, with costs. Cause remanded, &c. 
 
 Fnrnham, for the plaintiff. 
 
 Howk, for the defendant. 
 
 {bS9)
 
 457-458 SUPREME COURT OF INDIANA. 
 
 Morris and Another v. Price. 
 
 Morris and Another v. Price. 
 
 Attachment- Bond — Breach — Pleading. — A declaration in debt on an at- 
 taciiment-bond, after setting out the bond and condition, avered that the 
 attachment had been sued out, brought to issue, tried, and adjudged to 
 be void, without cause, tortious, and oppressive ; and that the phiintifF 
 had been much oppressed, and put to great trouble and expense, in defend- 
 ing himself against said false, feigned, and vexatious proceedings 
 
 [*458] of the defendant. Held, on ■■■'special demurrer, that the determina- 
 tion of the attachment-suit, the damages sustained, and the want of 
 cause for the attachment, were set out with sufficient certainty. 
 
 Same — Damage — Attorney's Fee. — Held, also, that on the assessment of 
 damages, the demurrer being overruled, evidence of the plaintiff's hav- 
 ing paid a fee to an attorney, in the attachment-suit was admissible (a). 
 
 Practice — Demurrer — Judgment. — Held, also, that on overruling the 
 demurrer in such case, final judgment should be stayed until, the truth 
 of the breaches assigned are inquired into and the damages assessed ; 
 and that, after such assessment, final judgment should be rendered for 
 the debt in the declaration mentioned with costs, and execution awarded 
 for the damages assessed with costs (6). 
 
 APPEAL from the Rnsh Circuit Court. 
 
 Stevens, J. — This was an action of debt in the Rush 
 Circuit Court, brought by the appellee against the appel- 
 lants, on a penal bond conditioned that the said Levi 
 Morris should well, truly, and bona fide, prosecute a cer- 
 tain writ of attachment, which he was about suing out of 
 the Rush Circuit Court against the goods, chattels, lands, 
 tenements, credits, moneys, and effects of the appellee, 
 and pay to him all damages which he might sustain in 
 consequence of said proceedings on attachment, should 
 the same be adjudged t(MTions or oppressive. The decla- 
 ration sets out the bond and condition, and avers that the 
 writ of attachment was sued, out, brought to issue, and 
 tried in the Rush Circuit Court, and adjudged to be void, 
 witliout cause, tortious, and oppressive, and that the 
 plaintiff was much oppressed, put to great costs, trouble, 
 and expeiise, in defending himself against said false, 
 feigned and vexatious proceedings on attachment of said 
 
 (a) 43 Ind. 486. (b) Supra, 359 ; 6 Ind. 387. . 
 
 (540)
 
 NOVEMBER TERM, 1831. 458-159 
 
 Morris and Another i. Price. 
 
 Levi. To this declaratiou the defendants demurred, and 
 set down as causes of demurrer: "1st, There is no aver- 
 ment in the dechiration that the proceedings on attach- 
 ment are finally ended ; 2d, There is no special aver- 
 ment of any damages having been sustained, above the 
 costs which defendants would be bound by the judgment 
 at law to pay ; 3d, There is no averment that the pro- 
 ceedings on attachment w^ere without just and probable 
 cause," The demurrer was overruled and judgment given 
 for the plaintifi*, a writ of inquiry awarded, and damages 
 assessed. 
 
 By a bill of exceptions it appears of record that, after 
 the jury was sworn to assess the damages, the plaintiJEf 
 offered to prove that he had paid an attorney 10 dollars 
 to defend him against said writ of attachment ; to the in- 
 troduction of which evidence the defendants ob- 
 [*459] jected, but the Court overruled the ^objection, 
 and the evidence went to the jury. The errors 
 complained of are: 1st, The overruling the demurrer; 
 2d, The permitting the evidence set out in the bill ofex- 
 ceptions to go to the jury; and 3d, The rendition of the 
 judgment in manner and form as it is rendered. 
 
 The whole of the proceedings in this case are some- 
 what loose, informal and irregular, but are all substan- 
 tially good, except the rendition of the judgment. On 
 overruling the demurrer, the order of the Court should 
 have been that the plaintiff" should recover his debt and 
 damages on the occasion of the detention thereof; but 
 that judgment should not be given until the truth of the 
 breaches assigned were inquired into and the damages 
 assessed. After that, final judgment should have been 
 rendered for the plaintiff for the debt in the declaration 
 mentioned with costs, and execution awarded for the 
 damages assessed with costs. 1 Saunders, 58 and note 1 ; 
 3 Chitt. PI. 280, 287; Clark v. Goodwin, July term, 1820; 
 Glidewell et al. \\ M'Gaughey, ^N'ovember term, 1830; 1 
 Blackf. Rep. Appendix, 437. 
 
 (541)
 
 45:u-i(30 SUPREME COURT OF INDIANA. 
 
 Johnson, Surviving Administrator, v. Hawkins. 
 
 M'KiXNEY, J., naviiig been of counsel in the cause, was 
 absent. 
 
 Per Curiam. — The judgment is reversed, with costs. 
 Cause remanded, &c. 
 
 Smith, for the appelhints. 
 
 Wick, for the appall .:.■. 
 
 Johnson, Surviving Administrator, v. Hawkins. 
 
 Judgment — Excessive — Against Administrator— Practice. — Debt by 
 A. against B. administrator of C, on a bond of the intestate for 860 dol- 
 lars. Damage, 100 dollars. Pleas, non esffadnm and plene adminktravit. 
 Yerdirt for the debt, and for 481 dollars and 60 cents damages; in all, 
 1 o41 dollars and 60 cents. Judgment for the same, de bonis propriis, with 
 costs. 
 
 Held, that the judgment is erroneous: 1st, because it is de bonis propriis ; 
 and, 2dly, because it is for a greater sum than is laid in the declaration. 
 
 Held, also, that the jury should have not only found the amount of the debt 
 and damages, but also the amount of assets in the defendant's hands. 
 
 ERROR to the Martin Circuit Court. 
 
 Stevens, J. — Debt by James Hawkins against Julius 
 Johnson, Charles Brown and Timothy Moses, ad- 
 [*460] ministrators of the ^estate of Benjamin Vanator, 
 deceased, on a writing obligatory made by the de- 
 ceased in his life time, for the payment of the sum of 
 860 dollars to the plaintiff. The damages laid in the dec- 
 laration for the detention of the debt are 100 dollars. 
 The defendants pleaded two pleas : first, that the supposed 
 writing obligatory was not the deed of the deceased ; and, 
 secondly, plene aefminisiravit. . Issue was joined on the 
 first plea. To the second plea, a replication denying the 
 plea and averring that there were assets to the amount 
 of 1,000 dollars was filed and issue joined thereon. The 
 verdict was as follows: "We of the jury find for the 
 plaintiff' the debt in the declaration mentioned, and assess 
 his damage at 481 dollars and 60 cents, making in the 
 
 (542)
 
 • NOVEMBER TERM, 1831. 460-461 
 
 Johnson, Surviving Administrator, v. Hawkins. 
 
 whole the sum of 1,341 dollars and 60 cents.'' A motion 
 for a new trial was made and overruled, and the follow- 
 ing judgment rendered; "It is therefore considered by 
 the Court that the plaintiff recover of the defendants the 
 sum of 860 dollars, the debt, and 481 dollars and 60 cents 
 damages, making in the whole the sum of 1,341 dollars 
 and 60 cents, as by the jurors aforesaid in manner and 
 form aforesaid assessed, and that he recover his costs." 
 
 The judgment in this case, being de bonis projmis, is 
 erroneous. Neither of the pleas can be considered false 
 within the defendant's knowledge. However, if this was 
 the only error, time might be given for the Court below 
 to amend that error. Short v. Coffin, 5 Burr. 2730; King, 
 admW, V. Anthony, adni'r, May terra, 1828. The verdict 
 is also erroneous, being for a greater sum in damages 
 than is laid in the declaration. The Court below ought 
 to have set it aside, and granted a venire de novo, unless 
 the plaintiff would have remitted the excess of the dam- 
 ages. And this Court, if asked, might give time for the 
 remittitur to be moved and entered in the Court below, if 
 there were no other errors. 1 Sellon's Practice, 481 ; 
 Hoits V. Molony, 2 IST. Hamp. Rep. 322; Harris v. Jaffray, 
 3 Har. & John. 546 ; Bank of Kentucky v. AsJdey et al., 2 
 Peters, 329; Cro. Jac. 146; Hob. 178; Barnes, 17; 3 D. 
 & E. 349, 659, 749, &c. The verdict is also further erro- 
 neous. On the issues of non est factum and j^lene admin- 
 istravit, the jury finding both issues for the plaintiff should 
 have not only found the debt in the declaration, and 
 assessed the damages for the detention thereof, but 
 should have also found the amount of the assets in 
 r*461] *the hands of the administrators, they being liable 
 ■ no further than for the amount in their hands. 
 Fairfax's executor v. Fairfax, 5 Cranch, 19 ; Siglar, adm'r, 
 V, Haywood, 8 Wheat. 675; King, adm'r,v. Anthony, adm'r, 
 May term, 1828. Vide, also, statutes of the state of In- 
 diana. 
 
 (543)
 
 461 SUPREME COURT OF INDIANA. 
 
 Sims and Others v. Givan. 
 
 Per Curiam. — The judgment is reversed with costs. 
 Cause remanded^ &c. 
 Kinney, for the plaintiff. 
 Jiidah, for the defendant. 
 
 S[Ms and Others v. Givan. 
 
 Witness— Interest— Competency. — No confession of interest made bj a 
 witness, after a party is entitled to his testimony, can render him incom- 
 petent. 
 
 Same. — To exclude a witness on the ground of interest, he must appear to 
 be interested in favor of the jxirty who calls him. 
 
 Evidence — Question as to Sufficiency. — If the defendant believes the 
 plaintiff's evidence to be insufficient to sustain the action, he should ob- 
 tain the decision of the Circuit Court on the subject, by asking instruct- 
 ions to the jury, by a motion for a new trial, or in some other way. 
 Without some such previous proceeding, though the evidence be set out in a 
 bill of exceptions, the Supreme Court can take no notice of the question. 
 
 Witness— Incompetency — Practice. — If, in the course of a witness's ex- 
 amination, he appears from his own answers to be incompetent, the party 
 against whom the evidence is given, should move to strike out the testi- 
 mony. But, if no objection be made below to the evidence, its admission 
 can not be assigned for error. 
 
 ERROR to the Hendricks Circuit Court. 
 
 Blackford, J. — Tliis was an action on the case by Givan 
 against Sims and others. The canse of action declared on 
 is, that Givan was the owner of a boat and a carofo of salt ; 
 that in an attempt to ascend White River, between Spen- 
 cer and Indianapolis, this property was lost; and that the 
 loss was occasioned by a dam obstructing the navigation 
 of the river, which the defendants had wrongfully erected. 
 To this action, the defendants pleaded not guilty. On 
 the trial of the cause, the defendants objected to one of 
 tiie plaintiff's witnesses, by the name of Jones, as being 
 interested, and undertook to prove his interest by other 
 witnesses. The whole object of the prc^of was, to show 
 that Jones himself was the owner of the property lost 
 
 (544)
 
 NOVEMBER TERM, 1831. 461-462 
 
 Sims and Others v. Givan. 
 
 This testimony was rejected by the Circuit Court ; 
 [*462] and *the phxintiiF was permitted to examine the 
 witness. The evidence of Jones is set out in the 
 record, and is said to be all the testimony given by tlie 
 plaintiff, relative to his property in the boat and salt. The 
 jury acquitted one of the defendants, and found a verdict 
 of guilty against the others. A judgment was rendered 
 by the Court, in conformity with the verdict. 
 
 To reverse this judgment, it is contended, first, that the 
 evidence rejected was sufficient to prove Jones to be in- 
 terested; secondly, that the plaintiff's evidence did not 
 show his ownership of the property lost; thirdly, that the 
 testimony of Jones himself shows him to be interested. 
 
 The first objection to the judgment is not sustainable. 
 A part of the evidence offered to prove the witness's in- 
 terest, consisted of declarations made by him after the 
 cause of action arose. These declarations were of no con- 
 sequence. Xo confession of interest made by a witness, 
 after a party is entitled to his testimony, can render him 
 incompetent. Pollock v. Gillespie, 2 Yeates, 129. Inde- 
 pendently, however, of this consideration, applicable only 
 to a part of the proof offered, there is a valid objection 
 which applies to it all. To exclude a witness on the 
 ground o.f interest, he must appear to be interested in favor 
 of the party who calls him. Peake's Ev. 160. The de- 
 fendants only propose to prove that the property lost 
 belonged to the witness. That evidence was not sufficient 
 to exclude him. If the property belonged to the witness, 
 it is not to be presumed that he would wish to see the 
 compensation for its loss go into the pocket of the plain- 
 tiff'. His feelings would more [>robably be the other way. 
 He might therefore not be a competent witness, if called 
 by the defendants ; and yet, at the same time, be the best 
 the plaintiff could produce. 
 
 In the case of an indorsee against the acceptor of a bill, 
 the defendant called the indorser to prove that the bill 
 belonged to the indorser himself, and not to the plaintiff. 
 A^OL. II.— 35 (545)
 
 462-463 SUPREME COURT OF INDIANA. 
 
 Sims nnd Others v. Givan. 
 
 The witness was iidjadged to be interested to defeat the 
 action, and was accordingly rejected. Bucklandv. Tankard, 
 5 T. R. 578. This autnority proves, that, had the witness 
 ill the case before us been called by the defendants, the 
 plaintiff might have objected, that as the witness claimed 
 the property lost, he was interested in defeating the 
 action. But this reason for the witness's incompetency, 
 when called by the defendants, shows that they 
 [''^63] ^could not object to him as the plaintiff's wit- 
 ness — his interest being in their favor and against 
 the party calling him. The legatee in a will, for example, 
 is not a competent witness at common law to support the 
 will, because it is his interest to support it; but he is a 
 good Avitness to disprove the will, for he then swears 
 against his interest. Oxenden v. Penericc, 2 Salk. 691. In 
 a suit against a sheriff for the misconduct of his bailiff, 
 the latter is an incompetent witness for the defendant, 
 it being his interest to defeat an action the success of 
 which makes him liable to his principal. But the bailiff 
 is an unobjectioiuible witness in such a case, when called 
 by the plaintiff, because his interest is against the action. 
 Arch. Plead. 439. These authorities show that the defen- 
 dants' objection to the witness is without foundation. 
 The witness's interest, arising from his claim to the pro- 
 perty lost, is against the action, and can be no objection 
 to him, when called by the plaintiff. 
 
 There was no proof offered that Jones was to have any 
 part of the damages which might be recovered; or that 
 he was to be liable to the plaintiff if the action failed ; or 
 that he had any other interest in the plaintiff's success. 
 The objection made to his competency was, therefore, cor- 
 rectly overruled. The most of the evidence offered to 
 prove the incompetency of Jones as a witness, and prop- 
 erly rejected as inadmissible for that purpose, was legal 
 testimony for the defendants on the trial of the merits. 
 If they could prove that the property belonged to Jones, 
 and not to the plaintiff, they would defeat the plaintiff's 
 
 (546)
 
 NOVEMBER TERM, 1831. 463-464 
 
 Sims and Others v. Givan. 
 
 action, by showing he had no right to recover. In that 
 way alone they were entitled to the admission of the evi- 
 dence referred to; and it does not appear that that right 
 was denied them. 
 
 The next objection to the judgment is, that there was 
 not sufficient proof that the property lost belonged to the 
 plaintiff. The evidence given on this point is set out in 
 the record by a bill of exceptions ; but no opinion of the 
 Circuit Court, with respect to its sufficiency, appears to 
 have been expressed or asked for. The defendants, if 
 they believed the evidence insufficient to sustain the ac- 
 tion, should have obtained a decision of the Circuit Court 
 on the question, by asking instructions to the jury, or by 
 a motion for a new trial, or in some other mode. 
 [*464] *Without some such previous proceeding, it is 
 impossible for this Court to take any notice of the 
 subject. 
 
 The last objection to the judgment is, that an incom- 
 petent witness was examined, as appears by his own evi- 
 dence on the record. The practice in these cases is, that 
 if, in the course of the witness's examination, he appears 
 from his own answers to be incompetent, the opposite 
 party moves to strike out his testimony. There was no 
 motion of this kind made in the Circuit Court by the de- 
 fendants ; but they have chosen to submit the objection, 
 in the first instance, to the consideration of this Court. 
 We have no authority, under those circumstances, to ex- 
 amine the question. 
 
 The judgment in favor of the plaintiff below must be 
 affirmed. 
 
 Pel' Curiam. — The judgment is affirmed, with 5 pt-r cent. 
 damages and costs. 
 
 Fletcher and Gregg, for the plaintiffs. 
 
 Wick, for the defendant. 
 
 (547)
 
 464-465 SUPREME COURT OF INDIANA. 
 
 Lurton v. Carson. 
 
 LuRTON V. Carson. 
 
 Evidence — Sufficiency — Record — Bill of Exceptions. — If a motion 
 for new trial, made on the ground tliat the verdict is unsupported by the 
 evidence, be overruled, and the opinion be excepted to, — the bill of ex- 
 ceptions must show that it contains all the evidence given in the cause (a). 
 
 Same — Weight of. — If the evidence be contradictory, and there be ground 
 for an honest»difference of opinion as to the propriety of the verdict, the 
 refusal to grant a new trial is not error (6). 
 
 ERROR to the Posey Circuit Court. 
 
 M'KiNNEY, J. — Action of trespass and false imprison- 
 ment. Verdict and judgment for the plaintiff. 
 
 A bill of exceptions was taken to the opinion of the 
 Court, overruling a motion for a new trial. The biH'con- 
 tains the testimony of several witnesses, but does not 
 show that it presents all the testimony given on the trial. 
 This is necessary. If it does not appear, we will, agree- - 
 ably to the case of Meno v. Crane, May term, 1829, of this 
 Court, presume that the Circuit Court acted correctly. To 
 enable us to say whether the Court below was correct in 
 its refusal to grant a new trial, it is obvious that we should 
 be in possession of all the testimony in the case. 
 pi'465] *Thetestimony presented is contradictory. Ex- 
 clusive of the defect in the bill of exceptions, we 
 should be unwilling to interfere with this verdict. The 
 verdict of a jury is entitled to great respect. It is their 
 province, in such a case as this, to weigh the testimony. 
 It is with reluctance that a Court would interfere. . If 
 there be ground for an honest difference of opinion, the 
 verdict should not be set aside. 
 
 Per Curiam. — The judgment is affirmed with 5 per cent, 
 damages and costs. 
 
 Baitcll and Hall, for the plaintiff. 
 
 Judah, for the defendant. 
 
 (a) 8 Ind. 24 ; 4 Id. 266. {b) 37 Ind. 361. 
 
 (548)
 
 NOVEMBER TERM, 1881. 465-466 
 
 Picquet i'. M'Kay. 
 
 PicQUET i-. M'Kay. 
 
 Trover — Plaintiff's Title. — To support the action of trover, the plain- 
 tiff must prove property, and the right of possession in himself, and a 
 conversion by the defendant. 
 
 Same — Lien of Defendant. — If the defendant has a lien on the goods for 
 which trover is brought against him, the action cannot be sustained, unless 
 a tender have been made to the defendant of the amount of the claim. 
 
 Same — Waiver of Lien. — If a person have a lien on goods for the price 
 of hauling them to a place of deposit, his subsequently claiming them as 
 his own, and refusing, on that ground, to deliver them to the owner, is a 
 waiver of the lien. 
 
 Lien — Bailee — Character of. — If A. deposit with B. a quantity of grain 
 for safe-keeping, and, at the time of making the deposit borrow money 
 and buy goods on credit of B. — the law creates no lien for the debt on 
 the grain, in the absence of any agreement to that effect. 
 
 New Trial — Excessive Damages. — A new trial should not be granted in 
 an action on tort, on the ground that the damages are excessive, unless 
 they appear at first blush to be outrageous and excessive (a). 
 
 Former Recovery — Pleading. — To render a former recovery an estoppel 
 to a subsequent suit, embracing the same matter in controversy with the 
 first, the judgment must be specially pleaded as an estoppel. If it be not 
 so pleaded, and the defendant rely on the general issue, the former judg- 
 ment is admissible in evidence, but it is not a conclusive bar to the action : 
 the jury may still find for the plaintiff, if they think him entitled to 
 recover, 
 
 ERROR to the Jefferson Circuit Court. — M'Kay was 
 the plaintiff below, and Picquet the defendant. 
 
 M'KiNNEY, J. — This was an action of trover brought to 
 recover the value of 248| barrels of corn. Plea, not 
 guilty. Verdict for the plaintiff below for 220 dollars, 
 and judgment, A motion for a new trial founded upon the 
 following reasons: 1st. The verdict is contrary to law and 
 evidence: 2d, The damages are excessive; 3d, The record 
 offered in evidence by defendant was conclusive 
 [*466] between the parties, and the verdict *onght to 
 have been for the defendant, — was overruled, and 
 a bill of exceptions taken to the opinion of the Court. 
 Two errors are assigned : the refusal of the Court to 
 
 (a) 23 Ind. 562. 
 
 . (54c»^
 
 466 SUPREME COURT OF INDIANA. 
 
 Picquet r. M'Kay. 
 
 grant a new trial, and the rendition of judgment upon 
 the verdict. 
 
 The testimony shows that, about the last of December, 
 1828, M'Kay had, at a landing on the Ohio river, 248| 
 barrels of corn ; that it was hauled by Picquet's teams to 
 his cribs, and the parties agreed that if it did not spoil, 
 having been under water five or six hours, Picquet was 
 to keep it at one dollar per barrel, and if it did spoil, 
 M'Kay was to take it away, paying Picquet the expense 
 of hauling it from the landing to the cribs, amounting to 
 17 dollars. After the deposit of the corn, M'Kay re- 
 ceived from Picquet 60 dollars in cash and 15 dollars in 
 goods. The terms upon which the money was paid did 
 not appear. On the 20th of February following, M'Kay 
 demanded the corn. Picquet refused to deliver it, saying 
 it was his, and on being asked for the price of it, re- 
 marked that he would pay for it when he pleased. It 
 appears that Picquet stated that he did not advance the 
 money on account of the corn, but that a note was taken 
 payable to C. M. Martin & Co., merchants of Madison, 
 for the money, and by them endorsed to him; that good 
 corn was worth at the time of the demand one dollar and 
 25 cents per barrel ; that after the demand was made, 
 Picquet offered to let M'Kay have the corn, on his paying 
 the amount of money and goods advanced and the ex- 
 pense of hauling, or to give him 62| cents per barrel for 
 it; that the corn was noticed on the day of the demand — 
 a part was frozen and the balance wet and damaged and 
 "" daily becoming worse; that neither the money advanced 
 ' nor the expense of hauling, had been tendered; that an 
 authenticated copy of a record of a chancery cause, 
 brought by Picquet against M'Kay in the Gallatin Cir- 
 cuit Court, Kentucky, was admitted in evidence by the 
 Court, and read to the jury; that the corn, the subject of 
 the suit in Kentucky, was the same for which this action 
 was brought; that the chancery suit in Kentucky was 
 brought after the institution of this action ; and that a 
 
 (550)
 
 NOVEMBER TERM, 1831. 466-467 
 
 Picquet i. M'Kbj. 
 
 part of the corn was sold in May, 1829, at 75 cents per 
 barrel, and that one other crib was as good as that which 
 was thus sold. 
 
 To sustain this action it is essential that the plaintiff 
 
 prove property and the right of possession in him- 
 [*467] self, and a '-^conversion by the defendant. The 
 
 property in the corn does not appear to be con- 
 troverted. It is in MKay. Picquet treated it as such, 
 by the proceeding he instituted in Kentucky. But it is 
 said that Picquet had a lien which well justified the re- 
 fusal to deliver, until the lien was tendered or discharged. 
 If this be correct, Picquet was not guilt}- of the conver- 
 sion. We will examine this position. Liens are of three 
 kinds: by common law, by express agreement, or by 
 usage. Picquet was not a common carrier, he therefore 
 has no lien at common law. His lien to the amount of 
 hauling the corn to the cribs, could only attach by express 
 agreement; no usage being alleged, and none existing. 
 Assuming that the agreement that Picquet should have 
 the corn at one dollar per barrel if it did not spoil, and if 
 it did that M'Kay was to take it away on paying the ex- 
 pense of hauling, created a lien to that extent; yet, it is 
 conceived that on the demand being made, the lien was 
 waived by Picquet's claiming the corn as his own. The re- 
 lation in which they stood by the agreement was changed 
 by this claim. It was not the assertion of a right to the 
 amount of an existing lien, but to the property itself. A 
 lien can not be waived and resumed at pleasure. If a 
 different ground of retention than of the lien be assumed, 
 the lien ceases to exist. Boardman v. Sill, 1 Campb. X. 
 P. Cas. 410. If the lien does not exist by virtue of the 
 hauling, is it created by the advance of money and goods? 
 This idea is repelled by the express declaration of Pic- 
 quet, that he did not make the advance of money and 
 goods on account of the corn, but that for the money he 
 had taken M'Kay's note to C. M. Martin & Co.. and that 
 it was endorsed to him by them. This note was payable 
 
 (551)
 
 467-468 SUPREME COURT OF INDIANA. 
 
 Picquet v. M'Kay. 
 
 one day after date, and assuredly establishes a preference 
 to personal liability, rather than to the corn. Had no 
 such declaration, however, been made, and the fact of 
 the money and goods advanced been admitted, yet, in. 
 the absence of an agreement that a lien should exist, the 
 law would not have created it. This conclusion, exclu- 
 sive of the declaration of Picquet, is fully sustained by 
 the case of Levering v. Bond's Adm'r, 2 Harr. & J. R. 300. 
 It is also alleged that the damages are excessive. New 
 trials should be granted, when the finding of a jury has 
 stamped upon it a palpable disregard of the rights of a 
 party, and the indulgence of a prejudiced rather 
 [*468] than a just view of the case. *A verdict, how- 
 ever, to justify the intervention of a Court, should, 
 in the language of many decisions, on the first blush, ap- 
 pear to be outrageous and excessive. Upon a careful ex- 
 amination of the testimony in this case, we are not struck 
 with such a disproportion between the verdict and the 
 value of the corn, as would warrant us to say that this 
 verdict is excessive. The evidence on this point is some- 
 what contradictory. The plaintifi:' in error oftered, in 
 February, to give 62| cents per barrel for the corn. At 
 that time good corn was worth one dollar and 25 cents 
 per barrel. In May, one crib of the corn was sold at 75 
 cents per barrel, and one other crib was as good as that 
 which was thus sold. The jury may have correctly pre- 
 sumed that the preservative care of the owner applied to 
 the corn in February would have secured an average 
 price equalling that which it gave. 
 
 It is also contended that the decree rendered in the 
 chancery cause in Kentucky, is conclusive in this suit, as 
 the subject-matter of each is the same. The position is 
 unquestionably correct, that the judgment of a Court of 
 competent jurisdiction is conclusive between the parties,, 
 the same matter being in controversy. To give it, hov,-- 
 ever, this conclusive eft'ect, it should be pleaded as an 
 estoppel. Outram v. Morewood^ 3 East, 346. In the case^ 
 
 (552)
 
 NOVEMBER TERM, 1831. 468-469 
 
 Longworth v. Conwell. 
 
 of Vooght V. Winch, 2 Barnew. & Aid. 662, the Court of 
 King's Bench, upon a review of the cases upon the sub- 
 jec-rof estoppels, decided that if the estoppel is not relied 
 upon, but issue is taken on the fact, the jury will not be 
 bound by the estoppel. The same doctrine is found in 1 
 Stark, on Ev. 205. The defendant has rehed upon the 
 general issue. The record with other testimony is given 
 to the jury; they weigh it, and if they think, notwith- 
 standing the decree, that the case is with the plaintiff, 
 they can find accordingly. Church v. Leavenworth, 4 Day, 
 274; Canaan v. G.W. Turnpike, 1 Conn. 1. 
 
 We are therefore of opinion, that the Circuit Court 
 acted correctly in refusing a new trial. 
 
 Stevens, J., having been of counsel in the cause, was 
 
 absent. 
 
 Per Curiain.— The judgment is affirmed, with 3 per cent. 
 
 damages and costs. 
 
 Hoiok and Sjnith, for plaintiff. 
 Sullivan, for the defendant. 
 
 r*469] *LoNGWORTH V. Conwell. 
 
 Specific Performance— Power of Agent— Performance of Condition. 
 — A. agreed in writing to sell to B. a tract of land for a certain sum. 
 Payment to be made by B.'s delivering to A., or to his agent C, a boat 
 and cargo of produce by the first rise of the Ohio river sufficient to 
 10 lake boats over certain rapids in the river. If the boat, &c. could not 
 be prepared by the time specified, the payment was to be subsequently 
 made in a different manner. The conveyance to be made when tlie land 
 should be paid for. B. took possession of the land ; and delivered the 
 boat and cargo to C, as A.'s agent, but not till several weeks after the 
 first rise of the river sufficient for the purpose above mentioned. C. took 
 the property to N. Orleans; but what became of the proceeds did not ap- 
 pear. 
 Held, that C, as the special agent of A. to receive the property, had no au- 
 thority to receive it after the first rise of the river, &c. ; and that the sub- 
 sequent delivery of the same to him, did not entitle B. to a conveyance 
 of the land from A. 
 
 (553)
 
 4G9-470 SUPREME COURT OF IIn^JDIANA. 
 
 Longworth v. Conwell. 
 
 Held, also, that supposing C. to have been the general agent of A., still the 
 delivery, under the circumstances of the case, of the boat and cargo to C, 
 after the time specified in the contract, was not binding on A. 
 
 Principal and Agent — Power of General Agent. — It is a general rule, 
 that the principal is bound by the acts of his general agent, though the 
 agent exceed his private instructions. But the rule does not apply to 
 cases where the person dealing with the agent is apprised of the existence 
 of the private instructions. 
 
 ERROR to the Dearborn Circuit Court. 
 
 Blackford, J. — This is a bill in chancery by Conwell 
 against Longworth. The object of the bill is to obtain a 
 specific performance of a written contract, signed by 
 Longworth, for the conveyance of land. The following 
 is the agreement : 
 
 "Memorandum of an agreement between Nicholas 
 Longworth and Elias Conwell : said Longworth sells him 
 his farm on Hogan creek, bought of Wright, containing 
 71 acres, at 6 dollars per acre, payable in a boat fit to go 
 to Orleans, at 50 dollars. He is to cork, cover and fix the 
 boat, and said Longworth is to allow him the cost. The 
 balance to be paid, one-third in good white kiln-dried 
 corn meal at one dollar and a half per barrel ; one-third 
 in good stable fed beef cattle at the market price; and 
 one-third in good corn fed hogs at the market price. If 
 the parties can not agree on the price and weight, the 
 same to be fixed by two persons mutually chosen, and 
 they to have liberty, if necessary, to choose an umpire. 
 The boat and articles on board to be by said Elias Con- 
 well delivered to said Longworth, or his agent, 0. Walker, 
 by the first rise of the river sufficient to get over 
 [*470] the falls; or should said Elias Conwell not be *able 
 to prepare the boat and loading by that time, the 
 land to be paid for in good stall fed beef cattle, to be de- 
 livered in parcels or together at any time within one year, 
 at Aurora or in Cincinnati, at the market price to be fixed 
 by men as aforesaid. And said Longworth to be notified 
 when any are ready for delivery; and us much as 80 dol- 
 lars' worth must be delivered at a time, if delivered at 
 
 (554)
 
 KOVEMBER TERM, 1831. 470 
 
 Longwortli v. Conwell. 
 
 Aurora. Interest from this date till paid. A clear deed 
 to be made as soon as the land is paid for. Witness our 
 hands this 16th Sept., 1822. — N. Longworth. I would 
 prefer Walker should change the contract so as to have 
 the meal delivered in good, tight, merchantable hogs- 
 heads.— N. L." 
 
 The bill avers that, by virtue of the agreement, the 
 complainant entered into possession of the land, and that 
 he had paid the consideration, by a delivery of the pro- 
 duce to Walker, the agent of the defendant, according to 
 the contract. The prayer of the bill is, that the defend- 
 ant be decreed to execute a good deed to the complainant 
 for the land, &c. 
 
 The defendant admits, in his answer, the execution of 
 the agreement. He says, however, that the produce was 
 not delivered by Conwell on the first sufficient rise of the 
 Ohio river, as the contract required; and that he is not 
 bound by the subsequent receipt of it by Walker as charged 
 in the bill. He says, also, that as the payment for the 
 land had not been made to the defendant, nor to any per- 
 son authorized by him to receive it, he was under no ob- 
 ligation to execute the deed to the complainant; and that 
 he had accordingly refused to do so, except upon a cer- 
 tain condition (stated in the answer and which will be 
 hereafter noticed); with which the complainant refused 
 to comply. The defendant further states, that the com- 
 plainant afterwards filed his claim for the price of the 
 boat and cargo against the estate of Walker, who had died 
 in j^ew Orleans; and that it was not until that estate was 
 ascertained to be insolvent that he filed the present bill 
 against the defendant. 
 
 The decree of the Circuit Court is in favor of the com- 
 plainant. 
 
 The following is the material part of the testimony : 
 
 It is proved that Conwell, on the 4th of i^ovember, 
 1822, delivered to Walker, as the agent of Longworth, 
 a boat with a cargo of produce, valued by the two 
 
 (555)
 
 471 SUPREME COURT OF INDIANA. 
 
 Longworth v. Conwell. 
 
 [*471] former at 426 dollars, which *\vas the sum that had 
 been agreed on for the land. It is also proved, 
 that subsequently to the date of the contract, and three or 
 four weeks before the delivery of the property, there was 
 a rise in the Ohio river high enough to take boats over 
 the falls, and higher than the one was when the property 
 was delivered. It is also proved, tJiat Conwell had sold 
 to Walker a considerable quantity of tobacco, which the 
 latter took with liim to New Orleans, when he went Avith 
 the other produce he had received from the former; and 
 that this tobacco was not of the quality represented • by 
 Conwell, and brought at New Orleans but little more than 
 one-half the price that he had charged Walker for it. 
 
 It is proved also, that, after the delivery of the property 
 at Aurora to Walker, Conwell went to Cincinnati, where 
 Longworth resided, showed him Walker's receipt for the 
 property, and demanded a deed. Longworth refused to 
 execute the deed, on the ground that the property had 
 not been delivered on the first sufficient rise of the river, 
 and that Walker had no authority to receive it afterwards. 
 But, after some conversation, Longworth expressed his 
 willingness to sanction the reception of the property by 
 Walker, provided Conwell would agree that, in case 
 Walker should sustain a loss on the tobacco, no part of 
 the property received for Longworth should go to pay 
 Conwell for that loss. This proposition of Loiigwrrth, 
 Conwell refused to accept, and the deed for the land was 
 consequently not executed by Longworth. It is proved 
 that Walker died on the Mississippi in the summer of 
 1823, and that afterwards, and after Longworth's refusal 
 to execute the deed, Conwell filed the following chiini in 
 Court, against the estate of Walker, for the price of the 
 l)()ut and cargo in question: " Tlie estate of Olnidiah 
 Walker, dec'd, to Elius Conwell, Dr. To one flat boat 
 and loading, provided I fail to get the land from N. Long- 
 worth, which I bought of him— $426.00— Ellas Conwell." 
 After this, Conwell informed one of the witnesses, that ho 
 
 (556)
 
 NOVEMBER TERM, 1831. 471-472 
 
 Longworth v. Conwell. 
 
 did not intend to give up his claim to the land he had 
 bought of Longworth ; but that he would get what he 
 could from the estate, and as he did not expect the estate 
 would pay him the whole, he would look to the land for 
 the balance. 
 
 This is believed to be the material evidence given in the 
 
 cause. 
 [*472] ^According to the terms of the contract upon 
 
 which the present bill is founded, the complainant, 
 Conwell, could have no right to demand from the defend- 
 ant, Longworth, a deedfor the land in controversy, unless 
 he had previousl}^ made full payment for the same, or 
 done that which was equivalent. The consideration-money 
 was 426 dollars ; and the complainant had his choice of 
 two modes of payment. First, he might deliver at the 
 first sufficient rise of the Ohio river after the date of the 
 contract, to the defendant or his agent Walker, a boat 
 and cargo of produce for the New Orleans market worth 
 426 dollars; or, secondly, he might pay the amount in 
 beef cattle, to be delivered at Aurora or Cincinnati, within 
 one year after the contract. The complainant relies alone 
 upon his having paid the consideration, according to the 
 mode of payment first above-mentioned. The delivery of 
 the property was not made to the defendant in person, 
 but to Walker as his agent ; nor was it made at the first 
 rise of the river as had been agreed on, but several weeks 
 afterwards. And the great question upon which this case 
 must be decided is. Was that delivery, so made to Wal- 
 ker, a performance of Conwell's part of the contract? 
 
 The time fixed by the agreement for the delivery of the 
 p>roperty was very material. It was the defendant's in- 
 terest to have the produce in market as early as possible, 
 and he could not be obliged to receive it after the time 
 stipulated for its delivery. Walker, however, as the 
 agent of the defendant, did receive it afterwards, and took 
 it to New Orleans. It is material, therefore, to examine 
 whether Walker's authority to receive the property ex- 
 
 (.557)
 
 472-473 SUPREME COURT OF INDIAl^A. 
 
 Longworth v. Conwell. 
 
 tended beyond the time limited by the contract for its 
 delivery. 
 
 The complainant contends, in the first place, that Wal- 
 ker's authority to receive the property when he did, is 
 contained in the agreement itself. It is said in the con- 
 tract, " The boat and articles on board to be by said, Elias 
 Conwell, delivered to said Longworth, or his agent, 0. 
 Walker, by the first rise of the river,'' &c. There is noth- 
 ing in these words giving any authority to receive the 
 property after the first rise of the river. Had a distinct 
 power of attorney been executed, authorizing Walker to 
 receive the boat and cargo for the defendant, at a particu- 
 lar time, it is clear that the power would have expired 
 with the appointed day. The law must be the same in 
 
 this case. 
 [*473] *Here the agency created by the terms of the 
 contract was a special one ; it was merely for the 
 receipt of certain specified property at a fixed period ; and 
 the power expired when that period was past. 
 
 The complainant contends, in the second place, that a 
 general agency is proved, independently of anything con- 
 tained in the contract. In this he is mistaken. The de- 
 fendant answers the bill, on this point, as follows: "That 
 Obadiah Walker, in his life-time, and Edward Walker, 
 since his death, and perhaps before, were to a certain ex- 
 tent attending to his business. Said Obadiah Walker had 
 no written authority or verbal one further than this: he 
 received money from respondent and paid taxes for him ; 
 if persons wished to buy land, he showed the land and 
 proposed terms; but he had no authority even verbal to 
 make contracts. But if he made terms that met respond- 
 ent's views, he made written contracts with the parties; 
 if not, said Walker had no power to make contracts for 
 him or bind him ; nor does respondent recollect that he 
 ever attempted it, except in the reception of the boat and 
 cargo aforesaid," The witnesses prove nothing more than 
 this statement of the defendant. There is surely nothing 
 
 (558)
 
 NOVEMBER TERM, 1831. 473-474 
 
 Longworth v. Con well. 
 
 in this like a general agency for the transaction of all 
 kinds of business, or of the one kind relating to the pur- 
 chase and exportation of produce. Walker seems, from 
 the answer and the depositions, to have been employed 
 merely to pay taxes, and make and receive propositions 
 respecting the purchase of lands which the defendant had 
 for sale, subject entirely to the subsequent agreement or 
 disagreement of his employer. lie could make no con- 
 tract of any kind which would bind the defendant. It is 
 idle, then, to say anything about a general agency, appear- 
 ing from the testimony, dehors the contract on which the 
 bill is founded. 
 
 But even if a general agency had been proved by the 
 witnesses, as to all kinds or any one kind of business, it 
 would not change the merits of the present case. It is a 
 general rule, to be sure, that the principal is bound by 
 the act of his general agent, although such act may ex- 
 ceed the agent's private instructions. The reason of this 
 rule is, that the persons dealing with the agent can be 
 presumed to be acquainted only with the general author- 
 ity. Femi V. Harrison, 3 T. R. 757. In the case before 
 us, however, there were no private instructions ; 
 [*474] *and it can not, therefore, be brought within the 
 general rule which we have just mentioned, and 
 which was so much relied on for the complainant in the 
 argument of the cause. Here, the complainant did know 
 that Walker's powers, let them as to all other matters be 
 what they might, were limited as to the receipt of this 
 property for the defendant, to the first sufficient rise of 
 the river after the date of the contract. This limitation 
 of the agent's authority was expressly told to the com- 
 plainant by the terms of the contract itself upon which 
 he has founded his bill. The law, therefore, can not pre- 
 sume Conwell's ignorance of Walker's want of authority 
 to receive the property at the time he did receive it; iind 
 had Walker even been the general agent of Longworth, 
 
 (559)
 
 474-475 SUPREME COURT OF INDIANA. 
 
 Long worth d. Con well. 
 
 the latter would not have been bound by this unauthor- 
 ized act. Cessante ratione^ legis cessat ipsa lex. 
 
 The opinion to which we have arrived is — that whether 
 "Walker be considered a special or a general agent, the 
 complainant's delivery of the boat and cargo to hira at 
 the time he did deliver it, was not such a performance of 
 his part of the contract with the defendant as could en- 
 title him to a deed for the land in question. 
 
 There is nothing in any other part of the evidence, not 
 yet commented on, which can afiect this conclusion against 
 the complainant. 
 
 The defendant refused to execute the deed, when 
 called on by the complainant, soon after Walker's de- 
 parture with the produce. The same reason was then 
 given for the refusal that is insisted upon now. The terms 
 upon which, at that time, the defendant proposed to exe- 
 cute the deed, notwithstanding his legal right to refuse, 
 were of the most reasonable kind; and the complainant in 
 refusing to comply with them, plainly showed that he had 
 no claim to any favors from the defendant. The latter, 
 accordingly, very properly told the former, that he must 
 look to Walker for the property, with which he had 
 chosen to entrust him. It appears that, after this, the 
 complainant himself thought it advisable not to lose sight 
 of the estate of Walker. The filing of his account against 
 Walker's estate for the produce, though with the proviso 
 attached to it — and his statement to one of the witnesses, 
 that he intended to get what he could from the 
 [*475] estate, and look to the land for the balance — *show 
 that the complainant's confidence in his claim to 
 the land in question was far from being perfect. 
 
 The last ground taken by the complainant is that as 
 the defendant has not denied his receiving the proceeds 
 of the boat and cargo, and has proved that he did not 
 receive them, the Court must presume these proceeds to 
 liiive come into his hands. In answer to this it is quite 
 suthoiciit to observe, that the defendant is not charged in 
 
 (560)
 
 NOVEMBER TERM, 1831. 475-476 
 
 Jones i. The State. 
 
 the bill Avith the receipt of these proceeds, nor is there 
 any evidence in the record as to what became of them. 
 If the complainant wished to show that the defendant, 
 by receiving the money arising from the sales of the pro- 
 duce, had recognized Walker's unauthorized receipt of 
 that produce, it was surely for the complainant to prove 
 the defendant's receipt of the money. He has offered, 
 however, no evidence of this fact; and has no foundation, 
 of course, for this last point relied on to sustain the cause. 
 
 It is the opinion of the Court, for the reasons which 
 have been given, that the complainant in this case has 
 not shown himself entitled to the land claimed in his 
 bill; and that the decree of the Circuit Court, in his 
 favor, should be reversed. 
 
 Stevens, J., having been of counsel in the cause, was 
 absent. 
 
 Per Curiam. — The decree is reversed with costs. Cause 
 remanded to the Circuit Court, with directions to dismiss 
 the bill, &c. 
 
 Caswell, for the plaintiff. 
 
 Lane and Hohnan, for the defendant. 
 
 Jones r. The Stat 
 
 Grand Jury — Challenge of — Practice. — A per.sou under a prosecution 
 for a capital oSence about to be submitted to a grand jury, may challenge 
 any of the grand jurors for cause, but not peremptorily (a.) 
 
 Same — Belief in Death Penalty — One of the grand jurors in such a case 
 in answer to a question put to him by the prosecuting attorney, said, 
 " that he thought he could not in his conscience find any man guilty of 
 an offence that would subject him to death." Held, that the juror was dis- 
 qualified. 
 
 Jury — Challenge of — Practice. — Challenges to petit jurors are first made 
 by the prisoner, and afterwards by the prosecuting attorney. 
 
 Same — Disposal during Continuance. — The record in a capital 
 
 [*476] case showed, that, after the petit jury were sworn, the Court '••■ad- 
 journed from one day to the next, but it did not show that the ]ury 
 
 (a) 51 Ind. 14 ; 22 Id. 347. 
 
 Vol. II.— 36 (561)
 
 476 SUPREME COURT OF INDIANA. 
 
 Jones I'. The State. 
 
 were legally disposed of during the adjournment. Held, that a verdict 
 and judgment against the defendant must, under those circumstances, be 
 considered erroneous (6). 
 
 ERROR to the Bartholomew Circuit Court. 
 
 Stevens, J. — Jones, the plaintiff in error, was indicted 
 for the murder of John Ray, tried by a jury, found guilty, 
 and a judgment of death rendered by the Court against 
 him on the verdict of the jury. To reverse which judg- 
 ment this writ of error is prosecuted. 
 
 It appears of record b}^ a bill of exceptions that, at the 
 time of impaneling the grand jury that found the bill 
 'of indictment, Jones was in prison in the custody of the 
 sheriff on the charge for which he was indicted and con- 
 victed; and by order of the Court was in Court at the 
 time the grand jury was being sworn; and that he 
 claimed the right of peremptorily challenging the jurors 
 without showing any cause, which the Court overruled, 
 but permitted him to challenge for cause; that he chal- 
 lenged one Isaac Parker for cause, and Parker was sworn 
 to answer questions touching his qualifications, and after 
 being examined by Jones, was by him accepted; upon 
 which, the attorney prosecuting the pleas of the state 
 asked the juror, " if he could in his conscience Jind any man 
 guilty of an offence which would subject him to the 'punishment 
 of death f To the asking of which question Jones ob- 
 jected, but the Court overruled the objection and required 
 the juror to answer; and the juror answering that, " Ae 
 thought he could not in his conscience find any man guilty of 
 an offence that would subject him to death" he was by _the 
 Court for that cause set aside. 
 
 It also appears of record by the bill of exceptions that 
 after the bill of indictment was found, and the defendant 
 had been arraigned and pleaded not guilty, ^and while the 
 petit jury was being impaneled and sworn, the defendant 
 moved the Court to require the attorney prosecuting the 
 pleas of the state, to first examine the jurors and accept 
 
 (b) 28 Ind.22; modified, 7 Id. 271. 
 
 (562)
 
 ITOVEMBER TERM, 1831. 476-477 
 
 Jones 11. The State. 
 
 or reject them, before the defendant should be called on 
 to make his election; which motion the Court overruled 
 and required the defendant to first make his election, and 
 after he had accepted, the attorney prosecuting the pleas 
 of the state should then be at liberty to make his chal- 
 lenges, if any he had to make : and under that decision 
 of the Court James Jones and other jurors were 
 [*477] set *aside by the attorney prosecuting, after the 
 defendant had chosen them. 
 
 It further appears of record, that the petit jury was im- 
 paneled and sworn on Wednesday, and that before any 
 evidence was heard, the Court remanded the defendant 
 into the custody of the sheriff, and adjourned until Thurs- 
 day morning, eight o'clock; but the record is entirely 
 silent as to what was done with the jury. 
 
 The first point in this case is. Did the Circuit Court 
 err in not permitting the defendant to challenge grand 
 jurors peremptorily? 
 
 There is no statute or sanctioned practice in this state, 
 authorizing a prisoner to peremptorily challenge grand 
 jurors; and it is believed that no such practice exists in 
 England. The common law requires grand jurors to be 
 good and lawful freeholders, and the English statutes re- 
 quire several additional qualifications ; and Chitty in his 
 treatise on criminal law, when speaking of those qualifi- 
 cations of grand jurors, says that a prisoner, who is at the 
 time under a prosecution for an ofience about to be sub- 
 mitted to the consideration of agrand jury, may challenge 
 any of the grand jurors, who lacks any of those qualifica- 
 tions required by the common and statute laws. Chitty 
 refers to Hawkins' Pleas of the Crown, where it is said 
 that a challenge to grand jurors is very properly limited 
 to persons who are, at the time, under a prosecution for 
 an offence about to be submitted to a grand jury. By these 
 authorities it is clear, that, in England, these challenges 
 are limited to one certain class of cases, and then only for 
 cause. We are therefore of opinion that the Circuit Court 
 decided correctly. (563)
 
 477-478 SUPREME COURT OF IXDIAXA. 
 
 Jones r. The State. 
 
 The next point is, Did the Court err in permitting the 
 attorney prosecuting to ask the grand juror, '' if he could 
 in his conscience find any man guilty of an offence which 
 would subject him to the punishment of death," and in 
 setting aside the juror for answering that he "thought he 
 could not?" 
 
 The plaintiff contends that our statute does not authorize 
 the asking of such a question, and that it can not be 
 asked without the aid of a statute. It is correct that, 
 without the aid of a statute, no question can be asked a 
 juror that tends either to his disgrace or his dishonor; 
 
 but the authorities all show what is to be under- 
 [-^478] stood by that. Many of the cases under that *head 
 
 are summed up in Bacon's Abridgement, tilK' 
 Juries, letter E, and in the case of The King v. Edmo)ul<, 
 6 Sergeant & Lowber, 502, 503. It can not be .asked a juror, 
 if he has been either charged with, imprisoned for, or con- 
 victed of a crime, or if he is a villein or an outlaw, because 
 these questions tend to his disgrace. Nor can it be asked 
 him, whether he has formed or expressed an opinion of 
 the prisoner's guilt ; because, if he has formed or expressed 
 an opinion through ill-will, malice, or hatred to the 
 prisoner, it is dishonorable, and if he has formed or ex- 
 pressed his opinion honestly, from his correct knowledge 
 of all the facts of the case, it is no cause of challenge (1). 
 The question asked thejuror, in this case, has nothing to 
 do with the guilt or innocence of the prisoner, nor is it re- 
 specting any improper act or conduct of the juror, nor 
 could it tend to either his disgrace or dishonor. It was a 
 general question upon an abstract principle, and therefore, 
 under the circumstances of the case, might be properly 
 asked. The object, in these cases, is not to ]»rocure a jury 
 that will acquit the guilt}' or convict the innocent, but to 
 select such men as will impartiall}' hear and examine, and 
 acquit the innocent and convict the guilty. A grand jury 
 is the great inquest between tlie government and the citi- 
 zen; an institution that should be j)reserved in its purity; 
 
 (504)
 
 NOVEMBER TERM, 1831. 478-479 
 
 Jones r. The State. 
 
 and no person should ever be permitted to take a seat as 
 a member thereof, except such good and lawful men as 
 will impartially and faithfully carry the true objects of 
 the institution into elFect. We think the Court did not err. 
 
 The next point is, Did the Court err in permitting the 
 attorney prosecuting to challenge a petit juror after the 
 prisoner had accepted him ? 
 
 The only question on this point is, who shall first make 
 his challenge ? If this were a new question and we had 
 it to settle, we should say that the state ought first to 
 make her challenges; but as all the English authorities 
 establish a different doctrine, and no American cases have 
 been seen by us to authorize a dilFerent practice, we are 
 bound for the present to sanction what the Circuit Court 
 has done. 
 
 The last point is. Did the Circuit Court err in adjourn- 
 ing, after the petit jury was sworn, from Wednesday even- 
 ing until Thursday morning, without putting the jury 
 under the care and charge of the proper and sworn ofiicers 
 
 of the Court? 
 [*479] *If it is a fact, that the Circuit Court did so 
 adjourn without disposing of the jury, by putting 
 them under the charge and care of the proper sworn of- 
 ficers of the Court, it is admitted without controversy to 
 be error ; but it is insisted that we are bound to presume 
 that the Court acts correctly in all cases of discretion, un- 
 less the contrary appears of record by a bill of exceptions. 
 It is, as a general principle, correct to presume that a 
 Court acts correctly in matters of discretion, unless the 
 contrary appears of record, if the record shows that the 
 Court did act upon the subject. Our statute requires, in 
 cases of appeals and writs of error, that the Circuit Courts 
 shall cause to be certified to us a full and complete tran- 
 script of all its proceedings; and this transcript is so cer- 
 tified; and we are bound to believe that nothing more 
 was done than what is certified to us to have been done. 
 We can not, by intendment, supply any material proceed- 
 
 (505)
 
 479-480 SUPREME COURT OF INDIANA. 
 
 Raburn v. Shortridge. 
 
 ing which is entirely omitted. There are no words in 
 this record by which we can supply, by intendment, that 
 the jury was legally and correctly disposed of by the 
 Court during that adjournment. 2 New York T. R. 373; 
 8 Johns. Rep. 437; 11 Johns. Rep. 442; King v. Stone, 6 
 D. & E. 530. We think this is a material and substan- 
 tive error, and one which can not be cured by intend- 
 ment; and therefore the judgment and proceedings of 
 the Circuit Court, subsequent to the plea of the prisoner, 
 and the making up of the issue to the country, must be 
 reversed and set aside, and the cause remanded, with in- 
 structions to award a venire de novo, and proceed to trial 
 with the issne, &c. 
 
 Per Curiam. — The judgment is reversed, &c. Cause re- 
 manded, &c. 
 
 Sweetser, for the plaintiff. 
 
 Broion, Herod, and Lane, for the state. 
 
 (1) Vide Hudson v. The State,\o\. 1 of these Rep. 317. In a note to that 
 case, a statute of 1828 is referred to, which authorizes certain questions to 
 be asked of the jurors, as to their having formed or expressed any opinion 
 relative to the guilt or innocence of the pi-isoner. There is a similar stat- 
 ute of 1831. R. C. 1831, p. 197. 
 
 [*480] *Raburn V. Shortridge, 
 
 Judgment — Injunction Against — A judgment by default naving been 
 rendered against A., on a note previously executed by him to B., the 
 former filed a bill in chancery to enjoin the judgment — stating the note 
 to have been given, and the judgment rendered, on a certain condition 
 which had not been complied with. The answer, which was supported 
 by the deposition, denied the complainant's allegations. The Court dis- 
 missed the bill. 
 
 Same — Same — Remedy. — The want or failure of consideration is a good 
 defence to an action at law on a note, but if the defendant neglects to 
 make this defence, and suffers judgment by default, he can not, without 
 a strong case, be relieved in chancery (a). 
 
 Will — Rights of Devisee and Grantee. — If land devised be afterwards 
 sold by the devisor to a stranger, the devisee takes nothing by the devise. 
 
 (a) 12Ind. 42; 6 id. 127. 
 
 (566^
 
 NOVEMBER TERM, 1831. 480-481 
 
 Riibuni V. Shortridge. 
 
 APPEAL from the Montgomery Circuit Court. 
 
 M'KiNNEY, J. — This is a suit iu equity. On iinal hear- 
 ing upon bill, answer, and depositions, an injunction 
 granted was dissolved, and ten per cent, decreed upon the 
 judgment enjoined, with costs, &c. From that decree the 
 complainant has appealed. 
 
 The bill charges that the complainant, on the 17th day 
 of December, 1825, executed a note to the defendant for 
 the sum of 100 dollars, upon which judgment was ren- 
 dered against him by default at the September term, 1826, 
 of the Montgomery Circuit Court; that the note was 
 given, and the judgment rendered, upon the express con- 
 dition that the defendant should, as soon as judgment was 
 rendered, join with his wife in the conveyance of 121 acres 
 of land to one Joseph Corbett; that said land was devised 
 to Emily Heath, now the wife of the defendant, by the 
 will of William Nicholson, deceased, dated the 11th of 
 September, 1822, and directed to be conveyed to her by 
 John Raburn, Sen. ; that after said devise the testator 
 sold the land to Joshua Baxter, by whom it was sold to 
 Joseph Corbett, who was to receive a deed from John 
 Raburn, Sen., upon the death of the testator ; that the 
 testator, in lieu of the land devised to Emily Heath, en- 
 tered 100 acres, which were given to her; that the de- 
 fendant and his wife have refused to receive a deed from 
 John Raburn, Sen., according to the will of the testator, 
 to prevent a title being made to Corbett; that the com- 
 plainant purchased of the wife of the defendant the 100 
 acres of land given to her by William Nicholson, 
 [*481] deceased, and ^received a deed for the same ; that 
 at the time of the purchase he gave the defend- 
 ant the note for 100 dollars, in consideration that he and 
 his wife should receive a deed from John Raburn, Sen., 
 for the 121 acres devised by William Nicholson, and con- 
 vey the same to Baxter, to enable him to convey to Cor- 
 bett; that the defendant had an execution issued on tho 
 
 (.567)
 
 481 SUPREME COURT OF INDIANA. 
 
 Raburn v. Shortridge. 
 
 judgment against the complainant, and that it was levied 
 on his land; and prays an injunction. 
 
 The defendant answering, positively denies that the 
 consideration of the note, upon which the judgment was 
 rendered, was that stated by the complainant, but says 
 that the note was given for his wife's share, as one of the 
 heirs of William Nicholson, deceased, of a lot of land en- 
 tered by said Nicholson, and which he and his wife sold 
 and conveyed to complainant. He denies that he knew 
 of the sale by Nicholson of 121 acres of land to Baxter, 
 or of the sale by Baxter to Corbett; denies that he had 
 any knowledge of 100 acres of land being given to his 
 wife, in lieu of tlie 121 acres to be conveyed to her by 
 John Raburn, Sen.; denies his refusing to receive a deed 
 from John Raburn, Sen., to prevent a title being made 
 to Corbett. But he says that some considerable time 
 after the rendition of the judgment against the complain- 
 ant on the note for 100 dollars, a deed of some kind was 
 shown to him which he refused to receive, having previ- 
 ously given authority to an agent to receive a deed from 
 John Raburn, Sen., who lived in the state of Ohio. 
 
 It is well settled that when relief is asked in a Court 
 of chancery, the bill, on its face, should present a case 
 founded on some of the grounds of its jurisdiction, which 
 will warrant its interposition. The Court can not delve 
 into extrinsic matter, or create an issue dehors the plead- 
 ings of the parties, to sustain a bill or afford relief. This 
 remark arises from an examination of the depositions 
 taken in this case. They are contradictory, and embrace 
 matter most of which is entirely inapplicable and irrele- 
 vant to the issue before us. The same directness of tes- 
 timony, required in an issue at law, is necessary in an 
 issue in chancery. The rules of evidence are the same in 
 both Courts. In neither can you support an issue by tes- 
 timony extrinsic and foreign to it. Thus tested it is ob- 
 vious that little of the testimonyin this case is properly 
 applicable to it. 
 
 (568)
 
 NOVEMBER TERM, 1831. 481-482 
 
 Raburn i. Shortridge. 
 
 If the note complainant executed was without 
 [*482] ^consideration, or the consideration failed, the 
 failure of consideration would have been a good 
 defence at law. Leonard v. Bates, 1 Blackf. Rep. 172. 
 If the defendant instead of availing himself of such de- 
 fence, waives it, and suffers judgment to go against him 
 by default, a strong case must be made out or a Court of 
 chancery will not interfere. Clay, Sfc, v. Foy, 3 Bibb, 
 248. We think that, in the examination of the bill no 
 such case is presented. There appears a palpable incon- 
 gruity in the allegation of the complainant, "that the 
 note was given, and the judgment rendered, upon the 
 express condition and understanding that the defendant 
 should, as soon as the judgment was rendered, join with 
 his wife in the conveyance of 121 acres of land to one 
 Joseph Corbett," &c. It would seem from this allegation 
 that the execution of the note and the rendition of the 
 judgment were simultaneous. This is, however, opposed 
 by the previous statement, that the note was executed on 
 the 17th of December, 1825, and the judgment rendered 
 in September, 1826. It may be asked, was the note exe- 
 cuted with a view to the judgment by default, and was 
 the consideration of such judgment a constituent part of 
 the consideration of the note? If the consideration of 
 the note, and that for the judgment by default, were dis- 
 tinct, the question arises, is the equity relied on founded 
 on the failure of the consideration of the note, or upon 
 the non-performance of the condition inducing the ren- 
 dition of the judgment? If upon the failure of the con- 
 sideration of tlie note, we do not think the complainant 
 has oftered a sufficient cause to justify the interposition 
 of a Court of equity. He had an available defence at 
 law and neglected to use it. Vigilantibus non dormienti- 
 hus leges subveniunt. If the relief asked is predicated upon 
 the latter, in the absence of fraud, and fraud is not spe- 
 citicall\^ charged in the bill and is not to be presumed, the 
 complainant is not entitled to it. 
 
 (569)
 
 482-483 SUPREME COURT OF INDIA^-A. 
 
 Raburn v. Shortridge. 
 
 Another allegation in the bill may, however, aid in the 
 application of that just noticed. It is the allegation, 
 "that the consideration of the note was that the defend- 
 ant and his wife should receive a title from John Rabnrn, 
 Sen., to the 121 acres of land, and convey the same to 
 Baxter, to enable him to convey to Corbett, under the 
 agreement made by William Nicholson in his life-time 
 with said Baxter." Here is another consideration al- 
 leged for the note. In this, the rendition of a 
 [*483] judgment *upon the note is not intimated as in- 
 ducing its execution. These allegations are at 
 variance with each other. The conclusion to which we 
 are brought by the examination of the first, is not 
 changed by that of the latter. 
 
 The complainant also alleges that he purchased the in- 
 terest of the defendant's wife in the 100 acres of land 
 given to her by William Nicholson, and received a con- 
 veyance of it from the defendant and his wife; that the 
 note was given, at the time of the purchase and convey- 
 ance executed, for a consideration distinct from the pur- 
 chase. He, however, does not state what consideration, 
 if any, he gave for that interest. A conveyance of land 
 is always predicated upon a consideration. Such consid- 
 eration may be either good or valuable. The complain- 
 ant purchased and received a conveyance of the defend- 
 ant's wife's share of the 100 acre tract, but is silent as to 
 the consideration. 
 
 The reference to the will of William Nicholson does 
 not strengthen the complainant's case. A will is without 
 effect until the death of the testator. If William Nichol- 
 son, by his will in 1822, devised land, the interest of the 
 devisee would be divested by a sale subsequently made 
 by him. Such a devise is charged to have been made to 
 Emily Heath, the wife of the defendant, and a sale to have 
 been subsequently made to Baxter. If the sale was made 
 and was valid, the devise to Emily Heath became inop- 
 erative, and, as far as we can perceive, her agency was not 
 
 (570)
 
 NOVEMBER TERM, IS-Sl. 483-484 
 
 Pennybaker v. The State. 
 
 necessary to conlirm the title of the testator's vendee. If 
 the agreement between the testator and Baxter was parol, 
 such acts may have been mutually performed as would 
 have taken the case out of the operation of the statute 
 of frauds, and have enabled its enforcement. The right 
 to enforce would have been incident to the agreement, 
 and not have attached to the devise by the vendor. The 
 bill does not show whether the agreement between Wil- 
 liam Nicholson and Baxter is subsisting and in force, or 
 abandoned. 
 
 The positive denial of the answer, and the considera- 
 tion stated, are fully sustained by the depositions of James 
 Still and Morgan Shortridge, witnesses to the execution 
 of the note and of the conveyance of the land which the 
 complainant alleges he purchased of defendant's 
 [*484] wife. These witnesses are *unimpeached. Their, 
 testimony is entitled to great weight. The de- 
 cree of the Circuit Court must be affirmed. 
 
 Per Curiam. — The decree is atMrmed, with 3 per cent. 
 damages and costs. 
 
 Kinney, for the appellant. 
 Fletcher, for the appellee. 
 
 Pennybaker v. The State. 
 
 Husband and Wife — Crime of Wife. — If a wife commit an indictable 
 offence, without the presence or coercion of her husband, she alone is re- 
 sponsible for the offence (a.) 
 
 ERROR to the Owen Circuit Court. 
 
 M'Kinney, J. — This was an indictment for retailing 
 spirituous liquors without a license. Plea, not guilty; 
 and, by consent, the cause was submitted to the Court 
 
 («) See 51 Ind. 192; 44 Id. 91 ; 43 Id. 550. 
 
 (571)
 
 484-485 SUPREME COURT OF INDIANA. 
 
 Bruner and Others v. Manville and Others. 
 
 without the intervention of a jury. The defendant was 
 found guilty, and judgment rendered against him. A bill 
 of exceptions, taken to the opinion of the Court overrul- 
 ing a motion for a new trial, furnishes the evidence upon 
 which the judgment of the Court was founded. 
 
 A single question is presented for our consideration. 
 Can the judgment be sustained on evidence that the 
 whisky, charged in the indictment to have been sold by 
 the defendant, was sold by his wife, he being absent from 
 his house, and no authority proved to have been given ? 
 "We think the evidence insufficient to establish the liabil- 
 ity of the defendant. The presumption of agency is in- 
 admissible. The wife, committing offences without the 
 presence or coercion of her husband, is regarded as a feme 
 sole. She is alone responsible. 1 Russell on Crimes, 25; 
 1 Chitty's Bl. 348 and note 51. 
 
 Per Curiam. — The judgment is reversed. To be certi- 
 fied, &c. 
 
 Whitcomb, for the plaintifi". 
 
 Brown, for the state. 
 
 [*485] *Bruner and Others v. Manville and Others. 
 
 Fraudulent Judgment and Conveyance — Remedy of Creditors. — A 
 person against whom suits Avere depending for bona Jide debts, confessed a 
 judgment in favor of another, without consideration, to defraud his 
 creditors. The debtor's real estate was purchased, under an execution on 
 til is judgment, by the judgment-creditor. Judgments were afterwards 
 obtained, by the bona fide creditor.*, in their respective suits, and execu- 
 tions issued thereon and returned "no property found." The Court on a 
 bill filled hy \.\\e bona fide creditors, set aside the fraudulent judgment, 
 execution, and sale, and ordered the land to be sold to satisfy the com- 
 plainants' demands. 
 
 M'KiNNEY, J. — Suit in chancery, certified ft-om the 
 Knox Circuit Court, prior to a decree, the President Judge 
 liuving been of counsel for one of the parties. 
 
 (572)
 
 NOVEMBER TEHM, 1831. 485-486 
 
 Bruner and Others r. Manville and Others. 
 
 The bill is filed by Bruner in behalf of himself and 
 Clark and Graeter, jadgment-creditors of Charles Allen, 
 deceased. It charges that Charles Allen, without consid- 
 eration, and to defraud his creditors, on the 27th of Sep- 
 tember, 1824, in the Knox Circuit Court, confessed judg- 
 ment in" favor of Charles Manville for the sum of 3,013 
 dollars and 50 cents; that execution was sued out on the 
 succeeding day, and levied on all the real and personal 
 estate of the defendant Allen ; that it was sold, the former 
 being 600 acres of land, for 305 dollars, and the latter for 
 277 dollars and 12| cents ; that it was all purchased by 
 the said Charles Manville ; that the execution issued and 
 the sale was made fraudulently, by agreement between 
 the parties, to defraud the creditors of Allen. The death 
 of Allen, and the grant of administration on his estate to 
 Charles Manville, on the 7th of May, 1825, are stated. It 
 further charges, that the complainant and the other judg- 
 ment-creditors respectively recovered, in theKnox Circuit 
 Court, judgments against the said Charles Manville, ad- 
 ministrator of Charles Allen, deceased — the complainant, 
 on the 23d of March, 1827, for 246 dollars and 50 cents— 
 the said Clark, on the 22d of August, 1826, for 168 dollars 
 and 50 cents— and the said Graeter, on the 20th of March, 
 1827 ; that executions on said judgments were issued on 
 the 9th of April, 1827, and each returned " no property 
 found;" that said judgments are unpaid, and there is no 
 property of the said Allen by which they can be satisfied. 
 
 The death of Charles Manville is also charged, 
 [*486] and the grant of =f=administration on his estate to 
 
 Eli Manville, one of the defendants. The heirs of 
 Charles Allen and of Charles Manville, and the adminis- 
 trator of the latter are made defendants. It prays, 1st, an 
 injunction to restrain the administrator, Eli Manville, 
 from procuring an order to sell the land described in it ; 
 and 2d, that the judgment confessed by Charles Allen 
 in favor of Charles Manville be set aside, and that the 
 
 (573)
 
 486 SUPREME COURT OF INDIANA. 
 
 Bruner and Others v. Manville and Others. 
 
 land purchased by said Charles Manville be subjected to 
 the judgments in favor of the complainants. 
 
 The bill was taken as confessed against the adminis- 
 trator for want of an answer, and answered by the guard- 
 ians ad litem of the heirs, and byWilkins and his wife 
 Sarah, late Sarah Manville. Its allegations are not* denied, 
 but proof required. The testimony fully supports the 
 charges in the bill. The avowed object of the parties was 
 to protect the propert}^ of Allen from the claims of his 
 creditors. Suits instituted by the complainants were 
 pending at the term the judgment was confessed. The 
 law permits a debtor to prefer one creditor to another, 
 but this must be done bona fide. The vested rights of others 
 can not be affected. M'llenomy v. Boosevclt, 3 Johns. Ch. 
 Rep. 446. If Allen had been indebted to Manville to the 
 amount of the debt, the judgment would have been valid. 
 The testimony shows the contrary. Shall this judgment 
 then operate to the prejudice of Allen's creditors? We 
 think not. The fraud with which it is tainted avoids it. 
 The complainants have used the proper diligence. They 
 are entitled to relief. It is well settled that equity will 
 relieve against judgments obtained by fraud. Reigal v. 
 Wood, 1 Johns. Ch.Rep. 402; 1 Madd. Ch. Rep. 236. The 
 judgment thus confessed is void. It created no valid lien 
 upon the land of Allen. The title of the purchaser, him- 
 self a party to the fraud, can not be sustained. Livingston 
 V. Huhhsand others, 2 Johns, Ch. Rep. 512. 
 
 Per Curiam. — It is decreed, &c., that the judgment con- 
 fessed, &c., the execution, sale, sheriff's deed, &c., are 
 fraudulent and void, &c. ; and that the land be sold, &c., 
 to satisfy the complainants, &c. 
 
 Judah, for the complainants. 
 
 Kinney, for the defendants. 
 
 END OF NOVEMBER TEEM, 1831. 
 (574)
 
 AN INDEX 
 
 THE PRINCIPAL MATTERS 
 
 CONTAINED IN THIS VOLUME. 
 
 ABATEMENT. 
 
 See Corporation, 1. 
 
 1. To an action of assumpsit by two 
 plaintiffs, the defendant pleaded in 
 abatement that one of the plaintiffs 
 had died since tlie commencement 
 of the suit. Held, that, at common 
 law, the plea was good. — Meek v. 
 Ruffner 23 
 
 2. The statute of ]S'2o changed this 
 law, and authorized the suit to 
 proceed in the name of the survi- 
 vor, if the cause of action survived, 
 upon a suggestion on record of the 
 other's death Ibid. 
 
 3. If a feme sole marry, pending a 
 suit against her, the suit does not 
 abate; but the plaintiff" may pro- 
 ceed against her alone, without no- 
 ticing the marriage. — Sackelt v. Wil- 
 gon 85 
 
 4. If a capias ad respondendum be 
 issued against two, and be executed 
 on one only, the suit abates as to 
 the other on whom the writ was 
 not served ; and no judgment can 
 be rendered against him. — Glide- 
 well et al. v. M'Qmujhey 359 
 
 ACCORD AND SATISFACTION. 
 
 See Former Recovery, 4 ; Plead- 
 ing, 18. 
 
 ACKNOWLEDGMENT. 
 
 See Conveyance. 
 
 ADMINISTRATORS. 
 
 See Executors and Administra- 
 tors. 
 
 ADMISSIONS. 
 
 See Evidence, 3, 9 ; Partnership, 
 
 4,6-8. 
 
 ADULTERY. 
 
 See Slander, 2. 
 
 If a man have criminal intercourse 
 
 with a married woman, the ofTence 
 
 is adultery and not fornication.— 
 
 The State v. Pearce 318 
 
 AFFIDAVIT. 
 See Attachment, 2, 3; Continuance, 
 2 ; Evidence, 1 1 ; Jury, 5 ; Prac- 
 tice, 3. 
 
 AGENT. 
 See Principal and Aoent. 
 
 (575)
 
 487-488 
 
 INDEX. 
 
 AGREEMENT. 
 See Contract ; Fkaud?, Statute of. 
 
 ALIMONY. " 
 See Fraudulent Conveyance, 3 ; 
 
 Vendor and Purchaser, 24. 
 If a wife obtain a decree for a di- 
 vorce and for a certain sum as ali- 
 mony, the decree for the alimony 
 is a lien on the real estate of the 
 husband. — Frakes v. Brown 295 
 
 AMENDMENT. 
 
 See Ejectment, 6 ; Executors and 
 Administrators, 11. 
 
 A declaration in covenant, not show- 
 ing the writing declared on to be 
 under seal, was amended by the 
 insertion of words describing the 
 instrument as a writing obligatory. 
 Held, that this was an amendment 
 in substance, and entitled the de- 
 fendant, under the statute, to a 
 continuance. — Kelly v. Duignan el 
 «/ 420 
 
 ANSWER. 
 
 See Chancery, 13-15, 18-21, 24, 26, 
 
 27, 30 ; Evidence, 1 . 
 
 APPEAL. 
 
 See Costs, 4, 5. 
 
 APPEARANCE. 
 See Inquiry, Writ of, 1. 
 
 ARREST. 
 
 The arresting of an ofl'ender, and the 
 re-taking of him on fresh pursuit 
 after an escape, constitute but one 
 effective arrest.— Coojofr v. Adams 
 et al 294 
 
 ASSAULT. 
 See Indictment, ], 2 
 
 ASSAULT AND BATTERY. 
 
 See Justice of the Peace, 1, 2; 
 
 Slander, 1. 
 
 ASSESSMENT OF DAMAGES. 
 See Damages ; Demurrer to Evi- 
 dence, 3. 
 
 ASSIGNMENT. 
 
 See Bond, 1 , 4, 5 ; Judgment, 6, 7 ; 
 Promissory Notes, 2-7. 
 
 ASSIGNMENT OF BREACHES. 
 See Bond, 9 ; Damages, 7. 
 
 ASSUMPSIT. 
 See Condition Precedent, 3 ; Con- 
 tract ; Parties, 3 ; Vendor and 
 Purchaser, 12. 
 
 ATTACHMENT. 
 See Replevin, 6. 
 
 1. When a creditor comes in, during 
 the pendency of an attachment 
 commenced by another, to obtain 
 a judgment under the statute, his 
 claim must be set forth with the 
 same certainty that, in any other 
 action, is required in a declaration. 
 Gilly v. Breckenridye ...100 
 
 2. An affidavit in attachment can not 
 be objected to for not describing 
 the nature of the debt, if the same 
 be described in a declaration filed 
 in the cause. — O'Brien et al v. Dan- 
 iel et al 290 
 
 3. The affidavit, in the case of a do- 
 mestic attachment, must state the 
 county in which the debtor had 
 recently resided Ibid. 
 
 ATTACHMENT-BOND. 
 See Bond, 8 ; Damages, 6, 7 ; Plead- 
 ing, 23. 
 
 ATTACHMENT J^OR CONTEMPT. 
 See Trespass, 4. 
 
 ATTESTING WITNESS. 
 See Witness, 1, 2, 4. 
 
 ATTORNEY. 
 See Retraxit. 
 A., an attorney, received a note from 
 the payee for collection, and, with- 
 out the payee's knowledge, deliv- 
 ered it to B., another attorney, to 
 collect. B. collected the monev 
 and failed to pay the same to the 
 payee. Held, that A. was liable to 
 the payee for the money collected 
 by B.— Pollard v. Rowland ..22 
 
 AVOWRY. 
 See Replevin, 5, 7. 
 
 B 
 
 BANK OF INDIANA. FARMERS 
 
 AND MECHANICS'. 
 A promissory note dated the 1st of 
 
 (576)
 
 INDEX. 
 
 448-489 
 
 July, 1826, payable to the Presi- 
 dent and Directors of the Farmers 
 and Mechanics' Bank of Indiana, 
 at their < fKce of discount and de- 
 posit at Lawrenceburgh, on the 1st 
 of July, 1829, is not entitled, un- 
 der the statute, to days of grace ; 
 nor is it a paper in which the cor- 
 poration is prohibited by its char- 
 ter from holding an interest. — John 
 et al. V. The /l(r//K'/s and Mechanics' 
 Bank of InrJinna 367 
 
 BASTARDY. 
 
 1. An order by the Court of filiation 
 and bastardy may be enforced by 
 scire facias or debt on the order 
 against tlie putative father, or on 
 the recognizance against those who 
 have entered into it, in the name 
 of the state, on the relation of the 
 party entitled. — Harrington el al. v. 
 Ferguson 42 
 
 2. The scire facias or declaration, in 
 such case, must describe the cause 
 of action of the party claiming, 
 show Ijy what authority he has had 
 the care of the child, and why he 
 is entitled to the benefit of the or- 
 der for maintenance Ibid. 
 
 3. The prosecution, under tlie statute 
 for the support of illegitimate chii- 
 deren, should be in the name of the 
 state. — Dickerson v. Gray 230 
 
 4. The order of the Court, in a case 
 of bastardy, after stating what sum 
 the father must pay for the main- 
 tenance of the child, should be — 
 that the defendant pay the money 
 to the person who shall maintain 
 the child, or become entitled to the 
 same bylaw; and that he enter 
 into a recognizance with one or 
 more sureties, for the performance 
 of the order Ibid. 
 
 5. The provisions of the 77th section 
 of the act of 1824, relative to crimes 
 and punishments, requiring certain 
 actions to be brought within one 
 year next after the oflence commit- 
 ted, do not apply to prosecutions 
 under the act for the support of il- 
 legitimate children. — The Stale v. 
 Stafford 412 
 
 BILL OF EXCEPTIONS. 
 
 See Error, 9. 
 
 BILLS OF EXCHANGE. 
 See Pro.missory Notes, 2. 
 
 A^OL. II.— 37 
 
 1. A bill drawn on an administrator 
 
 in these words, " Please to settle 
 80 dollars out of my part of tlie 
 estate, with Nathan Harness, and 
 this my order shall be your re- 
 ceipt for the same," is not a valid 
 bill of exchange; being payable 
 only out of a particular fund. — 
 Mills et al. v. Kiu/kendall 47 
 
 2. A declaration against the acceptor 
 of such a bill, depending alone for 
 its support upon the bill and ac- 
 ceptance, contains no cause of ac- 
 tion, whether tlip acceptance be ab- 
 solute or conditional Ibid 
 
 3. If tlie payee of a bill of exchange 
 accepted for the drawer's accom- 
 modation, give time to the drawer 
 without llie acceptor's knowledge, 
 the latter is not thereby discharg- 
 ed ; though the payee knew that 
 the acceptance was made for the 
 drawer's accommodation. — Lam- 
 bert V. Sanford 137 
 
 BOARD OF JUSTICES. 
 
 See Seat of Justice, 1. 
 The Board of Justices may be sued, 
 in their corporate cajiacity, for any 
 legal demand against the county. — 
 Blackuell v. The Board of Justices of 
 Laivrence County 153 
 
 BOND. 
 
 See Damages, 4; Executors and 
 Administrators, 6-9 ; Lost Bond ; 
 Mortgage, 1,2; Pleading, 15, 22 ; 
 Vendor and Purchaser 3, 21. 
 
 1. The statute .secures to the obligor 
 the same equitable defence in an 
 action by the assignee,that he would 
 have been entitled to had the action 
 been by the obligee. — Davis v. Clem- 
 ents -^ 
 
 2. In an action on a penal bond, con- 
 ditioned for the delivery of prop- 
 erty at a certain time and place, 
 the declaration need not aver a 
 demand of the i)roperty at the 
 place, Aliler, if the condition be 
 for the payment of money. — Mitch- 
 ell et al. v' Merrill 87 
 
 3. The condition of a delivery-bond 
 .showed that tiie property was to 
 be delivered tothe))er«on to whom 
 the execution was directed, but it 
 did not stale his name. Held, that 
 the omission of the sheriff 's name 
 did not render the bond void, but 
 that the ambiguity thereby occa-' 
 
 (577)
 
 48P-490 
 
 INDEX. 
 
 sioned might be explained by ex- 
 trinsic evidence. — Evans et al. v. 
 Shoemaker 237 
 
 4. If the maker of a note be notori- 
 ously insolvent, the assignee may 
 sue the assignor without having 
 previously sued the maker. — Youse 
 V. M'C'reary 243 
 
 5. If the assignee of a note can not 
 collect the money from the maker, 
 he may recover from the assignor 
 the amount paid for the assign- 
 ment, together with interest and 
 costs of the suit against the maker. 
 The amount of the note is prima 
 facie evidence of the price received 
 by the assignor; but he is at lib- 
 ertv to prove the real consideration 
 
 Ibid. 
 
 6. Goods were taken in execution ; 
 and a delivery-bond payable to 
 the execution-plaintifl' was execu- 
 ted by the debtor and his surety, 
 conditioned for the delivery of the 
 property in as good order as it was 
 at the date of the bond. Debt on 
 the bond. Breach, the non-deliv- 
 ery of the property in as good order 
 as it was when the bond was exe- 
 cuted. Demurrer to the declaration, 
 and judgment for the plaintifT. 
 
 Held, on the execution of the writ of 
 inquiry, that the sheriff was a com- 
 petent witness to prove the value 
 of the property. Held, also, that, 
 in the ab.sence of all testimony as 
 to the value of the property, the 
 amount of the execution was the 
 proper measure of damages. Held, 
 also, that the quantum of damages 
 sustained by the plaintiff for the 
 breach of contract was the only 
 subject of inquiry before the jury. 
 — Chinn et al. v. Perry 268 
 
 7. In an action on a sheriff's bond 
 against the principal and his sure- 
 ties, for money collected by the 
 sheriff on an execution in favor of 
 the plaintiff, the defendant can not 
 plead that there is no judgment on 
 which the execution issued. — The 
 State V. ificA-s et al .....236 
 
 8. An attachment-bond must be ap- 
 proved of by the clerk who issues 
 the writ. His approval, however, 
 is not conclusive but only jrrima 
 
 facie evidence of the sufficiency of 
 the sureties. — Blaney v. Findley el al. 
 
 338 
 
 9. On overruling a demurrer to a 
 declaration, in an action on a iH'ual 
 
 bond conditioned for the perform- 
 ance of covenants, in which decla- 
 ration the breaches are assigned, 
 the order of the Court is — that the 
 plaintiff ought to recover his said 
 debt and his damages on occa-ion 
 of the detention thereof; but that 
 judgment should not be given until 
 the truth of the breaches assigned 
 is inquired into, and the damages 
 are assessed. 
 
 After this, if the Court, by agreement 
 of the parties, have inquired into 
 the damages, the opinion is given 
 and entered — that the plaintiff has 
 sustained damages, by reason of 
 the breaches assigned, to the amount 
 of . 
 
 The next and last steps to be taken 
 are, the rendition of the final judg- 
 ment for the debt in the declara- 
 tion mentioned with costs ; and the 
 award of execution for the damages 
 assessed with costs. — Glidewell et al 
 M'Gaughey 359 
 
 10. A declaration on a bond for se- 
 curity for costs, stating that the 
 plaintiff sues for himself and 
 others, officers of the Court, is 
 bad. Any person interested may 
 sue for himself on the bond, and 
 obtain a judgment for the penalty ; 
 and, afterwards, any other person 
 interested, may, upon that judg- 
 ment, have a scire facias. No one, 
 however, has a right to sue for 
 himself and othei's, officers, &c. 
 
 Ibid. 
 
 11. It is not sufficient, in an action 
 on such a bond, to state that the 
 defendant has not paid the costs, 
 without setting out the amount of 
 the costs incurred Ibid. 
 
 12. After a lapse of 20 years, with- 
 out any acknowledgment of the 
 debt, the payment of a writing ob- 
 ligatory may be presumed.-0'i?n'e?i 
 el cd. V. Coulter et al 421 
 
 BREACH OF THE PEACE. 
 See Justice of the Peace, 1, 2. 
 
 CESTUI QUE TRUST. 
 
 See Trust and Trustee, 4, 5, 9; 
 
 Vendor .\nd Purchaser, 34. 
 
 78) 
 
 CHALLENGE. 
 See Jury, 4, 9-12.
 
 INDEX. 
 
 490 
 
 CHANCERY. 
 
 See Disseisin, 3 ; Ejectment, 1 ; Evi- 
 dence, 1 ; Executors and Admin- 
 istrators, 15, 18 ; Fraudulent 
 Judgment; Guardian and Ward; 
 Mistake, 2 ; Specific Perform- 
 ance ; Vendor and Purchaser, 
 9. 
 
 1. The payee of a note, who has sued 
 the makers, can not demur to a bill 
 in chancery iiled by the latter, be- 
 cause it charges the note to be 
 usuriou.s and prays a discovery, if 
 the complainants have brought' the 
 principal and legal interest into 
 Court. — Harvey v. Crawford et aLA?> 
 
 2. The bill in the above-named cause 
 having been taken for confessed, 
 and a decree rendered enjoining 
 the payee's proceedings at law, 
 held, that costs might be given to 
 the complainants. Held, also, that 
 the decree should secure to the 
 payee his costs in the suit at law. 
 
 _ Ibid. 
 
 3. A., holding a land-office certificate 
 for a tract of land, executed a title- 
 bond to B. for a conveyance at a 
 future time of part of the land, and 
 put him in possession. A, after- 
 wards, sold and assigned the certi- 
 ficate to C, with notice of B.'s 
 equity. D., the assignee of B., 
 having reason to fear that C. would 
 disturb his possession, and .sell to 
 a purchaser without notice, filed a 
 bill in chancery to enjoin him from 
 
 ■ doing so, and obtained a decree ac- 
 cordingly. — Cupps V. Irvin 112 
 
 4. The extension of the jurisdiction 
 of Courts of law, in modern times, 
 to cases which were formerly sub- 
 jects of equitable jurisdiction only, 
 has not destroyed the jurisdiction 
 of Courts of equity. — Peck et al. v. 
 Braman et al 141 
 
 5. When accounts are intricate and 
 difficult, a bill in equity is the 
 more usual and suitable proceeding 
 to compel an account ; being best 
 calculated to do justice between the 
 parties ; since the plaintiff can 
 thereby obtain a discovery of books 
 and papers, and have the benefit of 
 the defendant's oath ; who, on the 
 other hand, is entitled to all legal 
 and equiiable allowances Ibid. 
 
 6. The heirs of A., some of whom 
 were infants, and his representa- 
 tives filed a bill in chancery 
 against the heirs and representa- 
 
 (579) 
 
 fives of B. The bill stated that H., 
 the guardian of A.'s heirs, having 
 contracted to sell their land to C, 
 procured an order of the Court in 
 Connecticut, where the land was 
 situated, authorizing its sale by D. : 
 that D., pursuant to the order, sold 
 and conveyed the land to C. for 
 1500 dollars, which amount had 
 nearly all been received by B. ; that 
 bonds to the Court were executed 
 by D. and E., conditioned that B. 
 should vest the purchase-money in 
 other land for the heirs of A., or lay 
 it out for their nurture, education, 
 or advancement, and should ac- 
 count to the Court when required, 
 or to the heirs when they should 
 come of age ; that B. having mar- 
 ried the widow and administratrix 
 of A. became possessed of the in- 
 testate's personal estate to a con- 
 siderable amount: that B. after- 
 wards removed from Connecticut 
 to_ Indiana, purchased land here 
 with the money of A.'s heirs re- 
 ceived as aforesaid, took the title 
 in his own name and died without 
 accounting to them, or leaving per- 
 sonal property sufficient to pay 
 their claim. The bill prayed foi 
 a discovery, relief, &c. 
 Held, that a demurrer to the bill, on 
 the ground of the complainants' 
 remedy being at law, could not be 
 sustained ; the case being within 
 the jurisdiction of a Court of chan- 
 cery Ibid. 
 
 7. A decree in chancery is not bind- 
 ing on a person who was not a 
 party to the suit. — Brawn v. Wyn- 
 coop 230 
 
 8. A complainant in chancery may, 
 on payment of costs, dismiss h'is 
 bill at any time before a final 
 hearing, provided he be not in con- 
 tempt. — Smith V. Synilh et al 232 
 
 9. The complainant's mere failure to 
 comply with an interlocutory order 
 of the Court does not of itself so 
 place him in contempt as to pre- 
 vent him from dismissing his bill 
 on payment of costs Ibid. 
 
 10. The return to a subpoena in 
 chancery against Abner M'Carty 
 and John Pegg, was as follows : 
 " Executed on Abner M'Carty, the 
 25 March, 1826. John Pegg not 
 found. 20 March, 1826— R. John, 
 sh'tT." A decree, reciting that it 
 appeared to the satisfaction of the
 
 400-491 
 
 INDEX. 
 
 Court that the subpoena had been 
 duly executed, was entered against 
 the defendants pro confesso. Held, 
 that the return was insufficient to 
 authorize a decree. — Pef/g et al. v. 
 
 Capp 257 
 
 11. A., B., and C. executed a note to 
 D. for the payment of money. The 
 name of C. was afterwards erased 
 without the knowledge of the other 
 obligors, and a judgment obtained 
 against A. and B. A bill was filed 
 by A. and B. in order to have the 
 judgment enjoinr-d, averring their 
 ignorance of the erasure at the time 
 of the trial at law. Held, that the 
 erasure was a defence purely legal, 
 and that the complainants' igno- 
 rance of the erasure as averred, 
 was no ground for the interposition 
 of a Court of chancery. — Shelmire 
 V. Thompson etal 270 
 
 12. A. sold to B. a tract of land, and 
 gave him a title-bond conditioned 
 for the execution of a deed for the 
 land, when a patent for the same 
 should be obtained from tlie United 
 States. A. had paid to the United 
 States one-fourth of the purchase- 
 money. B. executed his notes to 
 A. for the price of the land, pay- 
 able part in labor and part in 
 money, and agreed to complete the 
 payments due to the United States 
 on' the land. A. afterwards as- 
 signed the land-oHice certificate for 
 the land to C, who had notice of 
 B.'s title-bond ; and C. paid the 
 balance of the purchase-money due 
 to the United States, and obtained 
 a patent for the land. B. filed a 
 bill in chancery against C, setting 
 out the above facts ; averring a per- 
 formance of the labor, and a pay- 
 ment of part of the money payable 
 to A. ; and praying for a convey- 
 ance of the land. Held, that as the 
 bill did not show a payment or 
 tender of all the money ])ayable to 
 A. by the contract, and a payment 
 or tender to C. of the balance of 
 the purchase-money paid by him 
 to the United States, it should be 
 dismissed for want of equity. — 
 D<ni<jhcrty v. Humpston 273 
 
 13. If exce])tions be taken to some 
 ]-art« of an answer in chancery, and 
 the Court consider the exceptions 
 valid, the defendant may be or- 
 dered to answer over so far as the 
 exceptions extend, but he can not 
 
 (5 
 
 be required to answer over gen- 
 erally. — Pegg v. Davis 281 
 
 14. If the answer to any particular 
 charge in a bill be not sufficiently 
 explicit, the complainant sliould 
 file exceptions to that part of the 
 answer ; but if instead of doing 
 that, he acquiesce in the answer, 
 the charge must be proved or it 
 will be disallowed Thid. 
 
 15. If any particular claim in a bill 
 be not answered, the complninant 
 should insist on an answer, and if 
 such answer be refused, he may 
 take a decree pro tunto by confes- 
 sion ; and then, if the charge is 
 sufficiently explicit, it may be re- 
 covered without further proof. Bnit 
 should the complainant, instead of 
 pursuing that course, bring the case 
 to a hearing on the merits, he can 
 only entitle himself to the claim by 
 proving it tbid. 
 
 16. If the charge in a bill he not 
 stated with sufficient certainty, the 
 complainant can not, even after a 
 decree pi'o confesso, have a final de- 
 cree, unless he establish his demand 
 by satisfactory evidence Ibid. 
 
 17. One of two defendants in chan- 
 cery can not be examined as a wit- 
 ness by the complainant, without a 
 special order of the Court. — Whee- 
 ler et al. V. Emmersnn 293 
 
 18. It is a general rule that an an- 
 swer in chancery is to be taken as 
 true, unless it be disproved by two 
 witnesses, or by one witness and cor-' 
 roboruting circumstances. — Green 
 et al. v.Vardlman et al 324 
 
 19. This rule, however, does not ex- 
 tend to everything which tJie an- 
 swer contains in favor of the de- 
 fendant : it applies only to that 
 part of the answer which is direct- 
 ly responsive to the ciiarges in the 
 bill Ibid. 
 
 20. Matters which are set up in 
 avoidance, and which are not re- 
 sponsive to the l)ill, must, when in 
 issue, be proved by tiie .defend- 
 ant Ihid. 
 
 21. If the answer admit a fact, but 
 rely on a distinct fact in avoidance, 
 the defendant must prove the fact 
 on which he relies Ibid. 
 
 22. The assignee of a debt — to obtain 
 ceiitain securities for the same, 
 which had been executed by the 
 debtor to the assignor's attorney, 
 and assigned by the attorney to a 
 
 80)
 
 INDEX. 
 
 491-402 
 
 third person— filrd a bill in chan- 
 cery against the attorney and his 
 assignee. Held, on demurrer, that 
 the complainant's assignor should 
 have been made a party. — Elderkin 
 
 V. Skultz 345 
 
 23 If a person, indebted to several 
 others, absent himself from the 
 state, and leave real estate,to which 
 he is entitled in equity, but no 
 property subject to legal process ; 
 liie creditors may unite in a bill in 
 chancery to have their claims liqui- 
 dated, and to make the property 
 liable for the nmount— Kipper el 
 (d. V. Glancey el al 356 
 
 24. The Court, on overruling a de- 
 murrer to a bill in chancery, should 
 give the defendant a reasonable 
 time to make and tile his answer. 
 
 ]bid. 
 
 25. A bill in chancery was filed in 
 llie Union Circuit Court, to revive 
 a decree in the Franklin Circuit 
 Court in favor of the complainant's 
 ancestor, respecting land situate, at 
 the time of the decree, in Franklin 
 county. When the bill of revivor 
 was filed, the land, in consequence 
 of a change of county boundaries, 
 lav in Union county. Held, that 
 the bill of revivor should have 
 been filed in the Franklin Circuit 
 Court ; the Union Circuit Court 
 having no jurisdiction of the cause. 
 — Arnold ei al. v. Styles el al 391 
 
 26. The merits of the decree can not 
 be disputed by an answer to a bill 
 of revivor • Ibid. 
 
 27. — The mode of objecting to an an- 
 swer as insuflScient is not by de- 
 murring, but by filing exceptions. 
 Ibid. 
 
 28. It is a general rule, that to reach 
 the equitable interest of a debtor 
 in real estate by a suit in chancery, 
 the creditors should first obtain a 
 judgment at law ; and to reach per- 
 sonal property, both a judgment 
 and execution must be shown. One 
 exceptiiiu to this rule is, where the 
 debtor is deceased ; another excep- 
 tion is, where the claim is to be 
 satisfied out of a fund accessible 
 only by the aid of a Court of chan- 
 cery.— O'Brien et al. V. Couller el 
 al.. 421 
 
 29. If a (leii'.iirrer to a bill for want 
 of proper parties be sustained, the 
 bill shoiild not be dismissed ; but 
 the cause be ordered to stand over 
 
 for a reasonable time, with leave to 
 amend the hiW.—Lijidley v. Cra- 
 vens 4_6 
 
 30. A bill in chancery, when denied 
 by the answer, must be proved by 
 at least two witnesses, or by one 
 witness and corroborating circum- 
 stances, or the complainant can not 
 succeed.— Je/a'.80M et al v. Grates et 
 al 440 
 
 31. If an execution-defendant have 
 goods subject to the execution, and 
 they be fraudulently placed by a 
 third person out of the reach of the 
 execution, such third person may 
 be compelled by the execution- 
 plaintiff, in a Court of chancery, to 
 account for the property Ibid. 
 
 32. A judgment by default having^ 
 been rendered against A., on a note 
 previously executed by him to B., 
 the former filed a bill in chancery 
 to enjoin the judgment— stating the 
 note to have been given, and the 
 judgment rendered, on a certain 
 condition which had not been com- 
 plied with. The answer, which 
 was supported by the depositions, 
 denied the complainant's allega- 
 tions. The Court dismissed the 
 bill. — Raburn v. Shortridge 480 
 
 33. The want or failure of considera- 
 tion is a gc od defence to an action 
 at law on a note; but if the defend- 
 ant neglects to make this defence, 
 and suffers judgment by default, 
 he can not, without a strong case, 
 be relieved in chancery Ibid. 
 
 CIRCUIT COURT. 
 
 See Jurisdiction, 3, 4; Justice of 
 
 THE Peace, 2. 
 
 COMMISSION MERCHANTS. 
 
 1. The usages of commerce regulate 
 the duties and privileges of com- 
 mission merchants, and generally 
 form their contracts in business ; 
 which usages are matters of fact 
 and susceptible of proof. — Rapp v. 
 Grayson 130 
 
 2. It is as much the duty of a com- 
 mission merchant to obey instruc- 
 tions, with regard to the shipping 
 of goods deposited with him to be 
 shipped, as it is to keep them safe- 
 ly while in his care. This duty de- 
 volves on all who are acting for 
 him as clerks or agents; and, while 
 they are recognized as acting for 
 
 (.581^
 
 492-493 
 
 INDEX. 
 
 him, their authority must be pre- 
 sumed to be co-extensive with his, 
 as to the business he is thus trans- 
 acting by them Jbid. 
 
 3. G. deposited goods in the ware- 
 house of R., a commission mer- 
 chant, and R. agreed to ship the 
 goods to a certain place i)y a good 
 boat, but not with W. and his boat. 
 R., afterwards, shipped the goods 
 with W. and in his boat. Held, in 
 case the goods were lost — tirst, that 
 R. was liable to G. for the damages 
 sustained by the loss, and that he 
 would have been so liable had he 
 merely contracted for the safe-keep- 
 ing of the goods; secondly, that 
 even if R. were not bound, in law, 
 to obey the instructions given him 
 as to the shipping of the goods, he 
 would still be subject to the action 
 of G. for delivering the goods to 
 W. contrary to those instructions ; 
 thirdly, that though G. might have 
 have recovered against W., and the 
 recovery would have barred a sub-' 
 sequent suit against R, yet G. was 
 not bound to resort to W. But it 
 was also held, that the action by G. 
 against R. could not be sustained 
 without proof of the loss of the 
 goods Ibid. 
 
 COMPANY, UNINCORPORATED. 
 
 The members of an unincorporated 
 company assumed the name of 
 "The Aurora Association for In- 
 ternal Improvement;" and in that 
 name, by their agent, executed a 
 title-bond for a lot in the town of 
 Aurora. Held, that the bond was 
 not obligatory on the members of 
 the company, and was consequent- 
 ly not a valid consideration for a 
 note given for the price of the lot. 
 — Vuitier v. Roberta 255 
 
 CONDITION PRECEDENT. 
 \ 1. In an action on a contract in which 
 something is to be done by the 
 plaintitf, on condition of which the 
 defendant undertakes to ])ay, the 
 plaintill' in his declaration must 
 aver a })erformance or a readiness 
 to perform on his part. But the 
 want of such an averment must be 
 taken advantage of by demurrer; 
 or, if the judgment be by default, 
 by motion in arrest. — Justice v. The 
 Board ofJiiiitices of Vermillion Gowity. 
 
 149 
 
 2. The plaintiff, in such an action, 
 can not be obliged to prove per- 
 formance of his part of the con- 
 tract before he has proved the 
 existence of the contract itself. 
 
 Ibid. 
 
 3. In the case of a special contract, 
 one party can not, by a part per- 
 formance only of his part, sue for 
 and recover, in indebitatus assump- 
 sit, for the part he has performed. 
 But if he perform a part of what 
 he was to do, and be prevented from 
 performing the residue by the con- 
 duct of the other party, he may 
 abandon the contract and recover 
 for what he has done. — Hoagkmd et 
 al V. 3Joore 167 
 
 CONFUSION OF GOODS. 
 It is a rule, both at law and in equity, 
 that if a person having charge of 
 the jiroperty of another, so con- 
 founds it with his own that it can 
 not be distinguished, he must bear 
 all the inconvenience of the confu- 
 sion ; and, if it be a case of dam- 
 ages, the damages given against 
 him will be to the utmost value of 
 the property. — Brackcnridge v. Hol- 
 land ctal 377 
 
 CONSIDERATION. 
 See Chancery, 33 ; Company, Un- 
 incorporated; Covenant, 7; Ex- 
 ecutors AND Adminlstrators, 4 ; 
 Pleading, 14 ; Promissory' Notes, 
 4 ; Vendor and Purchaser, 3, 21. 
 
 CONSTABLE. 
 
 See Execution, 2. 
 
 1, Although in a justice's warrant for 
 the apprehension of an oflender, 
 the time when the ofi'ence is alleged 
 to have been committed be subse- 
 quent to the date of the warrant, 
 the constable is justifiable in exe- 
 cuting it. — Faiterswi v. Kise et al. 
 
 127 
 
 2. If the defendant, in pleading a 
 warrant in justification of an ar 
 rest, aver that he was an acting 
 deputized constable of the county," 
 tlie word deputized may be consid- 
 ered as surplusage; and the jilea 
 will be good, though it do not set 
 out the defendant's appoint inenl, 
 nor allege tliat the warrant was 
 shown to the plaintifi', nor that it 
 was returned Ibid. 
 
 (582)
 
 IKDEX. 
 
 493 
 
 S. Though two offences against the 
 party be charged in the warrant, 
 yet, if the justice has jurisdiction 
 over both, the constable is bound 
 to execute it Ibid. 
 
 4. A person acting as a special con- 
 stable to execute a warrant, is au- 
 thorized to command assistance in 
 case of opposition Ibid. 
 
 CONSTITUTIONAL LAW. 
 
 See Divorce, 2 ; Insolvent Laws ; 
 Effect of Discharges Under, 3, 
 4 ; Judgment, 2-5 ; Justice of 
 the Peace, 2 ; Militia Fines ; 
 Slander, 1 ; Statute, 1. 
 
 CONSTRUCTION OF vSTATUTES. 
 
 See Statute, 5. 
 
 CONTEMPT. 
 
 See Chancery, 8, 9 ; Trespass, 4. 
 
 CONTINUANCE. 
 See Amendment. 
 
 1. If the continuance of a cause be 
 applied for, on the ground that a 
 witness who had been subpoenaed 
 does not attend, the return of the 
 sheriff must be produced. — Gordon 
 V. Spencer 286 
 
 2. An affidavit for a continuance, on 
 account of the absence of witnesses, 
 must clearly show their materiality. 
 
 Ibid 
 CONTRACT. 
 
 See Condition Precedent ; Vendor 
 AND Purchaser, 13. 
 
 A person entered into possession of 
 real estate under a parol contract, 
 by which the iessee was to have a 
 written lease for the premises for 
 7 years, and was to make certain 
 improvements thereon. After a 
 part of the work had been done, and 
 long before the expiration of the 
 term, the lessor refused to execute 
 the lease, and obliged the lessee to 
 •quit the premises. Held, that the 
 lessor, having rescinded the special 
 contract, was liable to the lessee, 
 in indebitatus assumpsit, for the 
 work performed.-.4/for;) v. Harmon- 
 son 235 
 
 CONVEYANCE. 
 See Fraudulent Conveyance"; 
 Vendor and Purchaser, 9, 14, 24 
 -27, 30 ; Witness, 4. 
 
 (58 
 
 If a conveyance of real estate appears 
 on its face to have been regularly 
 executed, and its execution is at- 
 tested by subscribing witnesses, it is 
 admissible in evidence without a 
 certificate of acknowledgement ; nn 
 acknowledgement being essential to 
 the admission of a deed to record, 
 but not to its validity.— Doe d. 
 Wayman v. Naylor 32 
 
 CORPORATION. 
 See Bank of Indiana, Farmers 
 and Mechanics' Company, Unin- 
 corporated. 
 
 1. A plea in abatement to an action 
 by a corporation, that the charter 
 is forfeited inconsequence of a mis- 
 user or non-user of the franchises, 
 can not be good ; unless it show 
 the forfeiture to have been judici- 
 ally declared at the instance of the 
 government. — John et ul. v. The Far- 
 mers and Mechanics^ Bank of In- 
 diana 367 
 
 2. If a promissory note be given to a 
 company as a corporation, the ma- 
 ker is estopped from contending 
 that, at the date of the note, the 
 company was not a corparation. 
 
 Ibid. 
 
 COSTS. 
 
 See Bond, 10, 11; Chancery, 2 ; 
 
 Ejecment, 5 ; Replevin, 4. 
 
 1. The defendant in replevin avowed 
 the taking of the goods, by virtue 
 of his office as sheriff, on an execu- 
 tion against a third person to whom 
 they belonged. The plaintiff plead- 
 ed property in himself. The jury 
 found that some of the goods were 
 the plaintiff's, and that some were 
 not his. Judgment on the verdict, 
 and that each party should recover 
 his costs. Held, that, as each party 
 had succeeded, each was entitled 
 to costs; and that the judgment 
 was right. — Chinn v. Russell 171 
 
 2. If the jury find a defendant in an 
 indictment guilty and assess the 
 fine, but acquit him as to costs, no 
 judgment for costs can be rendered 
 against him. — The State v. Racklei/. 
 
 249 
 
 3. Neither the state, nor a county, is 
 bound by law to pay the fees and 
 charges of the officers, in cases of 
 prosecutions on liehnlf of tlie st:.tf, 
 in wiiich the pro-ecution fails. — 
 Eaii'ley v. The Board of Commii'Mon- 
 
 3)
 
 4-93-494 
 
 INDEX. 
 
 ers of Vigo County 355 
 
 4. A. brought an action against B., 
 before a justice of the peace, for 77 
 dollars, and obtained a judgment 
 for 5 dollars and his costs. A. ap- 
 pealed to the Circuit Court, and 
 obtained a judgment for the same 
 amount with costs. Held, that, un- 
 der the statute of 1827, the judg- 
 ment in the Circuit Court for costs 
 was not erroneous. — Roberts v. Le- 
 favour 358 
 
 5. The costs on the appeal are taxed, 
 under the statute of 1827, in such 
 a manner as the Court thinks 
 proper Ibid. 
 
 COUNTY. 
 
 See Costs, 3. 
 
 COUNTY COMMISSIONERS. 
 See Parties, 1, 2. 
 
 COUNTY SEMINARIES. 
 See Militia Fines, 2. 
 
 COURT. 
 See Jury, 7. 
 
 1. The Court can not give an unquali- 
 fied charge to the jury, that the 
 evidence is insufficient to support 
 the action, unless in cases where it 
 would be bound to set aside the 
 verdict if for the plaintiff. — The 
 Governor v. Shelby 26 
 
 2. The refusal of the Court to give 
 instructions to the jury, which are 
 good law but not applicable to the 
 case, can not be assigned for error. 
 — Rapp v. Grayson 130 
 
 3. Wheiher evidence be competent 
 or not is always a question for the 
 decision of the Court. — Toivnsendv. 
 The Stole 151 
 
 COVENANT. 
 
 See Former Recovery, 2, 4 ; Re- 
 lease; Vendor AND Purchaser, 
 14, 18-20. 
 
 1 . If the breach of contract, for which 
 an action of covenant is brought, 
 was accompanied with fraud, the 
 fraud is a proper subject of inquiry 
 in that action, and may be special- 
 ly averred in the declaration. — CiU- 
 ler V. Cox... 178 
 
 2. A., being tlie owner in fee of a 
 
 town, leased one of the houses to 
 B. for a term of years, and cove- 
 nanted in the lease that B. should 
 have the exclusive privilege of 
 vending merchandise in the town 
 during the term. Soon after the 
 commencement of that term, A. 
 leased another house in the town 
 to C. for a term of years, without 
 any restriction as to the vending of 
 merchandise there ; C. under-let a 
 part of this house to D. without 
 restriction ; and D. commenced the 
 sale of merchandise on the prem- 
 ises so leased to him. D., before 
 the date of his lease, had notice of 
 A.'s covenant with B., and C. had 
 notice of the same before D.'s sale 
 had commenced. Held, that D. was 
 not, under these circumstances, pro- 
 hibited from vending merchandise 
 in the part of the house which had 
 been leased to him by C. — Taylor 
 V. Owen et at ...301 
 
 3. Such covenants as that above men- 
 tioned, of A. with B., are merely 
 of a personal nature. They neither 
 run with the land of the covenant- 
 or, nor create any lien thereon, 
 either legal or equitable Ibid. 
 
 4. A bona fide vendee or lessee of real 
 estate is not afiected by such a per- 
 sonal covenant ; and the circum- 
 stances of his having had notice of 
 it makes no difference Ibid. 
 
 5. A., by his unrestricted lease to C, 
 above mentioned, broke his cove- 
 nant with B. ; and he is liable for 
 the breach to B., if the covenant be 
 valid, in an action at law Ibid. 
 
 6. Same points decided as in the last- 
 named case. — Taylor v. Moffatt et 
 ul ■ 304 
 
 7. The consideration of a title-bond 
 was — the obligee's agreement to 
 convey certain land to the obligor, 
 on the same day on which the con- 
 veyance mentioned in thetitle-bond 
 was to be executed, and to pay the 
 obligor two promissory nx)tes be- 
 fore that day, one in money and 
 the other in personal property. 
 Held, that the covenants were de- 
 pendent ; and that the obligee's not 
 conveying nor offering to convey 
 the land, the conveyance of which 
 was the main part of the consider- 
 ation of the title-bind, was a bar 
 to his recovery on that bond. — 
 Pence et al. v. Smock 315. 
 
 (584)
 
 INDEX. 
 
 494-495 
 
 D 
 
 DAMAGES. 
 See Bond, 6, 9 ; Demurrer to Evi- 
 dence, 3 ; Seat of Justice, 3 ; 
 Trover, 1 ; Vendor and Pur- 
 chaser, 20. 
 
 1. If the sum to which the plaintiff 
 is entitled depend on the amount 
 due on a judgment, the Court can 
 assess the damages, after judgment 
 for the plaintifiion demurrer, with- 
 out a jury ; and so wherever there 
 are records or other undisputed 
 documents to determine the amount 
 due. — Harrington \ . Witherow 37 
 
 2. On a covenant to convey real es- 
 tate, as on a covenant of seisin, the 
 measure of damages is, in the ab- 
 sence of fraud, the purchase-money 
 and interest. — BlackweU v. The 
 Board of Justices of Lawrence County. 
 
 143 
 
 3. Qucere, whether on the covenant of 
 warranty, the value of the land at 
 the time of eviction, or the pur- 
 chase-money with interest, is the 
 measure of damages Ihid. 
 
 4. Debt on a bond, and judgment by 
 default. The plaintiff suggested 
 that the bond was conditioned for 
 the delivery of property taken on 
 execution, and assigned as a breach 
 that the condition was broken. 
 
 • Judgment, without a jury, for the 
 amount of the execution. Hdd, 
 that supposing the a«;ignment of 
 the breach to be only informal, and 
 the want of a judgment for the pen- 
 alty to be unavailing in error, yet 
 the breach should have been found, 
 and the damages assessed, by a 
 
 \\\r\.— Perkins et ul. v. Smith 171 
 
 5. Debt on a bond for the delivery of 
 goods, taken on an execution which 
 had issued igainst a judgment- 
 debtor and his replevin-surety. 
 Judgment, on demurrer, for the 
 plaintiff. Held, tliat the measure 
 of damages, if they did not exceed 
 the jienalty of the bond, was the 
 amount due on the original judg- 
 ment, with interest and costs ; but 
 that the assessment could not ex- 
 reed the penalty.— J/'Co(/ et al. v. 
 
 FJdei ". 183 
 
 6. Debt on an attachment-bond. The 
 condition of the bond was set out 
 in tlie declaration. Held, that, on 
 ihe assessment of damages, the de- 
 murrer being overruled, evidence 
 
 of the plaintiff's having paid a fee 
 to an attorney, in the attachment- 
 suit, was admissible. — Morris et al. 
 
 V. Price 457 
 
 7. Held, also, that on overruling the 
 demurrer in such case, final judg- 
 ment should be stayed until the 
 truth of the breaches assigned are 
 inquired into and the damages as- 
 sessed ; and that, after such assess- 
 ment, final JAidgment should be 
 rendered for the debt in the declar- 
 ation mentioned with costs, and 
 execution awarded for the damages 
 assessed with costs Ibid. 
 
 DAYS OF GKACE. 
 
 See Bank of Indiana, Farmers and 
 
 Mechanics'. 
 
 DEBT. 
 See Decree. 
 
 1. The general doctrine is, that an 
 action of debt can not be sustained 
 on a decree in chancery. — Elliott et 
 al V. Ray -.31 
 
 2. An action of debt will not lie on 
 the decree of a Court of chancery 
 in another state, unless the decree 
 have, by the statute of that state, 
 the force and effect of a judgment 
 at law Ihid. 
 
 3. If the decree have such effect by 
 statute, that fact should be averred 
 and proved; the statutes of other 
 states not being noticed here with- 
 out proof Ibid. 
 
 DEED. 
 
 See Conveyance. 
 
 DELIVERY-BOND. 
 See Bond, 2, 3, 6 ; Damages, 4, 5. 
 
 DEMAND. 
 See Bond, 2 ; Disseisin, 4 ; Sheriff, 
 r, 8 • Vendor and Purchaser, 4, 
 
 7, 8, 18. 
 
 DEMAND, ST.\TEMENT OF. 
 
 See Justice of the Peace, 5. 
 
 DEMURRER. 
 
 See Pleading, 2. 
 
 The defendant, on a demurrer to his 
 
 plea, obtained a judgment, v.ithout 
 
 having joined in demurrer. HeUh 
 
 that the plaintill could not assign 
 
 (5851
 
 495-496 
 
 INDEX. 
 
 the want of the joinder for error. — 
 Harris v. M'Faddin 71 
 
 DEMURRER TO EVIDENCE. 
 
 1. A party does not, by cross exam- 
 ining his opponent's witness, pre- 
 clude himself from the ri^lit of 
 demurring to the evidence. — 
 31'Cieary v. Fike 374 
 
 2. If a demurrer to parol evidence 
 contain all the evidence given, a 
 joinder in demurrer may be de- 
 manded , Ibid. 
 
 3. When a demurrer to evidence is 
 allowed, the jury may a.s.sess the 
 damages conditionally; or they 
 may be discharged without making 
 such an assessment; in the latter 
 case, should the demurrer be over- 
 ruled, the damages may be assessed 
 by another jury on a writ of in- 
 quiry Ibid. 
 
 4. If, from the testimony set out in a 
 demurrer to the plaintiff's evi- 
 dence, the jury might have infer- 
 red that the action should be sus- 
 tained, the plaintiff is entitled to a 
 judgment in his favor Ibid. 
 
 DEVASTAVIT. 
 
 See Executors and Administra- 
 tors, 1, 16, 17. 
 
 DEVISE. 
 See Will. 
 
 DILIGENCE. 
 
 See Bond, 4 ; Pleading, 3 ; Prom- 
 issory Notes, 3. 
 
 DISSEISIN. 
 
 1. A. died in jrossession of a tract of 
 land, which he held by virtue of a 
 title-bond executed by C. The 
 widow of A. remained in posses- 
 sion and married B., who also con- 
 tinued in possession. C, having 
 the legal title, brought an action 
 of disseisin for the premises against 
 B. without having previously de- 
 manded the possession. 
 
 Held, that though the statute gives to 
 the widow of A. a right of dower 
 in the equitable estate, her claim 
 constituted no defence in law to 
 tlic action of disseisin brought by 
 C.— Tai/lor V. M ' Crdc/cin .........260 
 
 2. Held, 2d, that tiie statutory provi- 
 sion — authorizing the widow to con- 
 tinue in possession of the mansion- 
 
 house, and the messuage thereto 
 belonging, until her dower is as- 
 signed — applies only to the persons 
 claiming under her decea.sed hus- 
 band, and not to those claiming by 
 an adverse title Ibid. 
 
 3. Held, 3d, that though a judgment, 
 in the action of disseisin, settles 
 the titles held by the parties at the 
 time of its rendition, it does not 
 prevent the losing party from en- 
 forcing a superior title suljsequent- 
 ly acquired, nor preclude either of 
 the parties from applying to a 
 Court of chancery to perfect his 
 title, or to enjoin a judgment ob- 
 tained contrary to equity Ibid. 
 
 4. Held, 4th, that C. could not sus- 
 tain his action of disseisin against 
 B., under the circumstances of this 
 case, without having previously de- 
 manded of him the possession of 
 the prera ises Ibid. 
 
 DISTRESS. 
 See Replevin, 4, 5, 7, 9. 
 
 1. The warrant of a justice of the 
 peace, issued under the statute of 
 1824, commanding the constable 
 to distrain for rent, is a justifica- 
 tion to the officer in an action of 
 replevin by the tenant, independ- 
 ently of the landlord's claim. — 
 Harris \. M'Faddin 71 
 
 2. If the constable justify under his 
 warrant, and obtain judgment on 
 a demurrer to his plea, he is en- 
 titled to a return of the goods..Ibid. 
 
 3. If the tenant wish to contest the 
 landlord's right to distrain — to 
 rely, for example, on non tenuit or 
 riens in arrear — he should institute 
 his suit against the landlord... Ibid. 
 
 DIVORCE. 
 
 See Alimony ; Fraudulent Con- 
 veyance, 3 ; Vendor and Pur- 
 chaser, 24. 
 
 1. Petition by a wife for a divorce. 
 The marriage was solemniized in 
 Kentucky, where tlie parties then 
 resided. The husband there, in 
 1822 or 1823, deserted his wife, and 
 has ever since lived in adultery 
 with another woman. Two or three 
 years after the desertion, the wife 
 removed to this slate, where she 
 has since tliat time resided. T!ie 
 husband was never resident here ; 
 and the notice to him of the pen- 
 
 (5S6)
 
 IXDEX. 
 
 498 
 
 dency of this suit was by publica- 
 tion. Held, that the Circuit Court, 
 under the statute, has jurisdiction 
 of the cause. — Tolen v. Tolen 407 
 
 2. Tlie constitutional provision, pro- 
 hibiting laws impairing the obli- 
 gation of contracts, does not ex- 
 tend to general laAvs authorizing 
 divorces; provided the legislature, 
 in the exercise of its power, does 
 not pass beyond the rights of its 
 own citizens, and act upon the 
 rights of the citizens of other states. 
 
 Ibid. 
 
 3. In a suit for a divorce, the lex 
 domicilii is the rule of decision.. 76!c/. 
 
 DOWER. 
 See Disseisin, 1, 2, 4. 
 
 1. After the alienation of real estate, 
 and before the death of the grantor, 
 the value of the estate was greatly 
 enhanced by improvements made 
 by the grantee. Held, that the 
 dower of the grantor's widow should 
 be assigned according to the value 
 of the property at the time of the 
 alienation. — Wilson v. Oatman- 223 
 
 2. A title-bond, conditioned for the 
 conveyance of real estate on pay- 
 ment of the purchase-money, was 
 executed, and possession at the 
 same time given to the obligee. 
 The purchase-money was after- 
 wards paid, and a title obtained by 
 
 the purchaser. Held, that the date 
 of the bond must be considered the 
 period of alienation, in estimating 
 the value of the property with a 
 view to the dower of the obligor's 
 widow Ihid. 
 
 DUPLICITY. 
 See Pleading, 4, 8, 20, 21. 
 
 E 
 E.JECTMENT. 
 
 1. If a defendant in ejectment have 
 a legal title to the premises, and 
 neglect to produce it in that action, 
 he can not, after a verdict against 
 him, obtain an injunction of the 
 proceedings at law, by a bill in 
 chancery founded on the same title. 
 — Broun v. Wyucoop 230 
 
 2. The question, whether a deed be 
 fraudulent and void as to creditors, 
 may be examined and decided in 
 an action of ejectment Ibid. 
 
 3. An infant, having a title to land 
 
 for which an action of ejectment is 
 brought, has a right to be admitted 
 a defendant on the usual terms ; 
 and the Court should appoint a 
 guardian for him, in order that he 
 may be enabled to defend the suit. 
 — Glass V. Doe d. Murphy 293 
 
 4. A person claiming, by virtue of a 
 title-bond only, the premises for 
 which an action of ejectment was 
 brotight, applied to be made a de- 
 fendant in the cau.se. Held, that, 
 as the claim was merely of an equi- 
 table nature, the application could 
 not be granted. — Bench v. Doe d. 
 Webster .30'J 
 
 5. If, in ejectment, there be a verdict 
 and judgment for the defendant, 
 the judgment for costs must be en- 
 tered against the nominal plaintiff, 
 and not against the lessor. — Doe d. 
 Brown el al.v. Owen 452 
 
 6. But a judgment in such case, 
 against the lessor, being defective 
 only in form, may be amended nu 
 motion in the Court below. Even 
 after the cause is removed by writ 
 of error, the proceedings in the Su- 
 preme Court will be stayed, on mo- 
 tion, till the amendment can be 
 made ; and, after the amendment, 
 a new transcript may be obtained, 
 on suggestion of diminution, and 
 the judgment affirmed Ibid. 
 
 ERASURE. 
 See Chancery, 11. 
 
 ERROR. 
 
 See Demurrer ; Inquiry, Writ of, 
 2; Jury, 3, 13; Oyer, 3; Plead- 
 ing, 16, 17 ; Similiter. 
 
 1. The record showed that a suit had 
 been commenced in the Orange Cir- 
 cuit Court, and that a declaratiou 
 and ))!ea had been therein filed ; 
 that the declaration and plea, with 
 an affidavit for a change of venue, 
 were afterwards on file in the 
 Washington Circuit Court; that 
 the cause was tried, and a verdict 
 rendered for the plaintiff, a new 
 trial granted on the defendant's 
 motion, a second verdict and final 
 judgment rendered for the iilaintifi', 
 in the last-named Court. Held, that 
 the circumstance of the record's 
 not showing an order for a change 
 of venue, could not be assigned for 
 error, no objection having been 
 
 (587)
 
 496-497 
 
 INDEX. 
 
 made below to the jurisdiction of 
 the Washington Circuit Court. — 
 Bosky V. Farquar et al 61 
 
 2. If the evidence, relative to the 
 merits of the action, be contradic- 
 tory, and the jury have any grounds 
 for their verdict in favor of the 
 plaintif!', a court of errors will not 
 reverse a judgment on the verdict, 
 because a new trial had been re- 
 fused. Aliter, if there was no evi- 
 dence of a fact essential to the sup- 
 port of the action. — Rapp v. Gray- 
 son 130 
 
 3. A judgment will not be reversed 
 because a motion for a new trial, 
 made on the ground of the verdict's 
 being contrary to evidence, has 
 been overruled ; unless it be clear 
 that the verdict is not warranted 
 bv the evidence. — Lamherl v. San- 
 ford 137 
 
 4. A judgment against a defendant, 
 in a criminal cause, will not be re- 
 versed because the record does not 
 show that the indictment was en- 
 dorsed, "a true bill," by the fore- 
 man of the grand jury. — Towmend 
 V. The Slate " 151 
 
 5. If any of the evidence, which is 
 contradictory, conduce to prove the 
 plaintiflf's case, and he obtain a 
 verdict, the refusal to grant to the 
 defendant a new trial, on account 
 of the insufliciency of the evidence, 
 will not, except in extreme cases, 
 be available in error. And where 
 a new trial is applied for on ac- 
 count of excessive damages, and 
 refused, the damages must be out- 
 rageously excessive, or a Court of 
 error will not interfere. — Hoagkind 
 et al. V. Moore 167 
 
 6. It is always presumed by the Su- 
 preme Court, that all the evidence 
 necessary to sustain the verdict 
 was given to the jury, unless the con- 
 trary be shown by the record. — 
 Cooper V. Adamseial 294 
 
 7. If the facts relied on to reverse a 
 judgment be not shown by the rec- 
 ord, and the judgment would be 
 authorized by any facts which 
 might have been legally before the 
 Court, the judgment must be af- 
 firmed. — Bliiney v. Findknj rt a/.338 
 
 8. After a cause had been continued, 
 the parties appeared during the 
 same term and proceeded to trial. 
 This was held not to be erroneous. 
 Tlie proceeding to trial, which 
 
 must be presumed to have been by 
 consent, cancelled the previous 
 order of continuance. — Wilson v. 
 Coles 402 
 
 9. If a motion fur a new trial, made 
 on the ground that the verdict is 
 unsupported liy the evidence, be 
 overruled, and the opinion be e.x- 
 cejJted to — the bill of exceptions 
 must show that it contains all the 
 evidence given in the cau.se.- Lu;7o»i 
 v. Carson 464 
 
 10. If the evidence be contradictory, 
 and there be ground for an honest 
 difference of opinion as to the pro- 
 priety of the verdict, the refusal to 
 grant a new trial is not error- Tbid. 
 
 ESCAPE. 
 
 1. A ca.sa. on a replevin-bond in the 
 Supreme Court was, by the sheriff 
 thereof to whom it wa,s directed, 
 sent to the sheriff' of Jackson coun- 
 ty, where the execution-defendant 
 resided. The sherifiof that county 
 arrested the defendant, and after- 
 wards suffered him to escape. Held, 
 that, under the statute, the sheriff 
 of the Supreme Court was not liable 
 for the escape. — M'Gruder v. Rus- 
 sell 18 
 
 2. The sheriff* of Jackson county, 
 after the escape, retook the defend- 
 ant in that county, and brought 
 him to the seat of government, 
 where the Supreme Court sits. 
 Held, that the removal of the de- 
 fendant out of the county in which 
 he was arrested was an escape. 
 
 Ibid. 
 
 3. A capias ad respondendum was 
 issued against Taylor & Scarles 
 requiring bail. Upon this writ the 
 sheriff arrested David S. Taylor, 
 but took no bail and permitted him 
 to escape. Held, that the sheriff 
 committed no breach of duty in 
 this discharge of Taylor, altliougli 
 the person intended liy tlie name 
 of Taylor in the writ was David S. 
 
 . Taylor. — The Governor v. Stribling 
 et al '. 24 
 
 ESTOPPEL. 
 See Corporation, 2 ; Former Re- 
 covery, 5. 
 
 EVIDEXCE. 
 
 See Bond. 3, 5. 8 : Chancery, 11-21, 
 3U; Conveyance; Court, 3; De- 
 
 (588)
 
 INDEX. 
 
 497-498 
 
 murrer to evidence ; former 
 Recovery, 5; Fraudulent Con- 
 veyance, 2 ; Justice of the 
 Pkace, 4, 7 ; Malicious Prosecu- 
 tion, 2-4 ; Marriage ; Partner- 
 ship, 4, 6-8 ; Pli:ai>[ng, 14; Sher- 
 iff, 3 ; Slander, 4,6; Surety, 2, 
 3; Trust and Trustee, 1-3, 7,8, 
 11: VEXDon and Purchaser, 9, 
 23, 28, 31 ; Witness. 
 
 1. The answer of one defendant in 
 chancery is no evidence against his 
 co-defendant. — Thomasiion v. Tuck- 
 er's A dminist7'al(yrs 172 
 
 2. Held, that an entry in the partner- 
 ship books, by one of the partners 
 in the business of a saw-mill, 
 cliarging himself with a boat wliich 
 he liad bnilt at the mill — might be 
 introduced by him as evidence, 
 inter aU'i, to prove the boat to be 
 his individual property. — Reno v. 
 Crane 217 
 
 3. A. entered into partnership with 
 
 B. in the husine s of tanning ; and 
 
 C. bound iiimself in a covenant to 
 B. for A.'s conduct as a partner for 
 a certain time. Held, that in an act- 
 ion by B. against C. on the cove- 
 nant, the admissions of A., made 
 after the expiration of the stipu- 
 lated time, were not admissible as 
 evidence against C. — Hotchkiss v. 
 Lyon el al 222 
 
 4. It is a general rule, that the best 
 evidence must be given of whicli 
 the nature of the case is capable. — 
 Jackson d. Taylor v. Culhim 228 
 
 5. If any instrument of writing, or 
 even the record of a judgment, be 
 lost or destroyed, the contents may 
 be proved by parol evidence.. /6k/. 
 
 ^. K. and D. being partners in a 
 mill which they iiad built, entered 
 into a written agreement, stating, 
 inter alia, that D. had bought K.'s 
 interest in the mill for 500 dollars, 
 to be paid in certain installments. 
 K., in an action against D. for the 
 purchase-money, was permitted to 
 show l)y pan)l evidence, that the 
 sum of 500 dollars, which D. was 
 to pay K. for his interest in the 
 mill, was exclusive of the expenses 
 that had been incurred in build- 
 ing it ; and that those expenses 
 were to be paid by D. — Kelse.y v. 
 Dickson 236 
 
 7. D. had given to K. a receipt as 
 follows: '"Rec'd. 17th Oct. 1821, 
 of J. Kelsev, 250 dollars, which, 
 
 w-ith 100 dollars formerly rec'd., 
 (as per rec't. given Mr. K.,) I am to 
 lay out for him in Louisville, in 
 such goods as will suit the Terre 
 Haute market, charging him cost 
 and carriage ; or, should this mode 
 of settlement not be desired, I am 
 to pay the amount in specie, add- 
 ing a [)ren)ium of two per cent. — 
 say in all 357 dollars, with interest 
 from date until paid — Francis 
 Dickson, Jun." In an action by 
 K. against D., in which K. claimed 
 the whole amount named in this 
 receipt, it was held that, though the 
 original receipt for 100 dollars was 
 not produced nor its absence ac- 
 counted for, that circumstance was 
 not of itself sufficient to exclude 
 K. from the benefit of the receipt 
 for the whole amount, including 
 the 100 dollars acknowledged to 
 have been previously received. /6i'c/. 
 
 8. Neither hearsay nor irrelevant 
 testimony is admissible. — Wilson 
 v. Hardinr/ 241 
 
 9. A sheriff's acknowledgment that 
 he had collected money on an 
 order of sale, can not be ])roved 
 to sustain an action for the money 
 against the sheriff's surety, unless 
 the acknowledgment was made 
 whilst the sheriff was acting offi- 
 cially in relation to the receipt of 
 the monev. — Shelby v. The Governor. 
 
 289 
 
 10. A party is not permitted to prove 
 what one of his witnesses swore to 
 on a former trial of the cause, until 
 he has proved that the witness is 
 dead. — Hobson v. Doe d. Harper. 
 
 308 
 
 11. A paper, purporting to be an 
 affidavit made before a justice 
 of the peace in another county, 
 was offered in evidence. Held, that 
 there must be proof of its authen- 
 ticity in order to authorize its ad- 
 mission ; but that it might be 
 proved by parol evidence. — Hac/a- 
 man v. Stafford 351 
 
 12. If the defendant believes the 
 plaintiff's evidence insufficient to 
 sustain the action, he should obtain 
 the decision of the Circuit Court on 
 the subject, by asking instructions 
 to the jury, by a motion for a new 
 trial, or in someother way. With- 
 out some such previous proceeding, 
 though the evidence be set out in a 
 bill of exceptions, the Supreme 
 
 89)
 
 498 
 
 INDEX. 
 
 Court can take no notice of the 
 question. — Sims et al v. Givan... 461 
 13. If, in the course of a witness's 
 examination, he appears from his 
 own answei's to be incompetent, 
 the party against whom the evi- 
 dence is given, siiould move to 
 strilte out tiie testimony. But, if 
 no objection be made below to the 
 evidence, its admission can not be 
 assigned for error Ibid. 
 
 EXCEPTIONS. 
 See Chancery, 13, 14, 27. 
 
 EXECUTION. 
 
 See Chancery, 31 ; Damages, 5 ; 
 Replevin, 2, 3 ; Right of Prop- 
 erty ; Trial of ; Sheriff, 3-6, 
 8; Trust and Trustee, 6; Ven- 
 dor AND Purchaser, 1, 2, 4-8, 15, 
 22, 23, 25, 28, '29, 33, 34. 
 
 1. An execution commanding the 
 sheriff that of the goods of A., B., 
 and C, he make, &c., which D. had 
 recovered against the said A. and 
 others, is not objectionable for not 
 stating the recovery to have been 
 against the said defendants A., B., 
 and C. ; the expressions being sub- 
 stantially the same. — iM'Coy et ul 
 v. Elder 183 
 
 2. A constable is virtually within the 
 provisions of the statute, requiring 
 sheriffs to pay rent before the re- 
 moval of goods taken in execu- 
 tion on demised pi-emises ; and 
 when sued for improperly paying 
 rent, he is bound to give some evi- 
 dence that the rent was due. — 
 Unc/Ies V. Graves 191 
 
 3. A fieri facias, by statute expressly 
 commands the sheriff to make the 
 money of the goods and chatties, 
 lands and tenements of the debtor. 
 — FrukeA V. Brown 295 
 
 4. A note for the payment of money 
 can not be taken and sold on exe- 
 cution.— J/' C/e/Zand V. Hubbard.Sei 
 
 EXECUTORS AND ADMINIS- 
 TRATORS 
 See Justice of the Peace, 8 ; Sure- 
 ty, 2, 3. 
 
 1. If a devastavit be established 
 against an administrator, his sure- 
 ties can not afterwards controvert 
 the devastavit. — The Governor v. 
 Shelbij 26 
 
 2. If the plaintiff' name himself as 
 
 administrator, in a suit on a judg- 
 ment recovered in his own name 
 on promises made to himself, no 
 profert of the letters of administra- 
 tion is necessary : the word admin- 
 istrator may be considered as sur- 
 plusage, or as a descriptio personse. 
 — Capp V. Gilman 45 
 
 3. The declaration, in such a case, 
 may be in the debet and detinet. 
 
 Ibid. 
 
 4. A bill was drawn on an adminis- 
 trator payable out of a particular 
 fund. The administrator prom- 
 ised the holder that if he would 
 retain the bill, it should be paid 
 whenever a certain farm should be 
 sold. Held, that as the considera- 
 tion of this promise arose subse- 
 quently to the intestate's death, no 
 action would lie against the ad- 
 ministrator on the promise, so a.s 
 to charge the estate of the intestate. 
 — Mills et al. v. lunjkendall 47 
 
 5. The promise of an administrator, 
 to pay a debt of the intestate, need 
 not be averred in the declaration 
 to be in writing; the statute of 
 frauds applying to the proof and 
 not to the declaration Ibid. 
 
 6. The statute requiring executors 
 and administrators to give bond 
 with surety imposes on them no 
 new duties; but it gives an addi- 
 tional remedy to creditors, legatees 
 and i)ersoiis entitled to distribu- 
 tion. — Eaton \. Benefield et al 52 
 
 7. A creditor can not sue on an ad- 
 ministration-bond until after he 
 has obtained judgment against the 
 estate of the intestate Ibid. 
 
 8. A legatee, distributee, or creditor, 
 until his claim has been exhibited 
 and established according to law, 
 and the payment thereof has been 
 refused by the executor or admin- 
 trator, is not a party injured with- 
 in the meaning of the statute, and 
 can have no suit for his bene- 
 fit on the executor's or administra- 
 
 . tor's bond Ibid. 
 
 9. The declaration on a bond of an 
 execirtor or administrator must 
 show the relator to be a creditor, 
 legatee, or distributee Ibid. 
 
 10. An account, commencing '' A. B. 
 debtor to C. D.," and then setting 
 out the items, dates, sums, &c , was 
 filed in the Circuit Court upon the 
 application of an executor, under 
 the statute of 1824. Held, that the 
 
 (590)
 
 INDEX. 
 
 498-499 
 
 account was sufficiently particular. 
 
 —Sackett V . Wilson " ; -.85 
 
 21. Assumpsit against an adminis- 
 trator on promises of tlie intestate. 
 Pleas, non-assumpsit, the statute 
 of limitations, and plene adminis- 
 travit. Judgment against the de- 
 fendant (le bimis propriis. Held, 
 that as neither of the pleas was 
 false within the defendant's knowl- 
 edge, the judgment de bonis proprii-i 
 was erroneous ; but as this was only 
 a clerical mistake, time would prob- 
 ably be given for its amendment 
 below, were there no other error in 
 the case. — Kin(j v. Anthony 131 
 
 12. In an action against an adminis- 
 trator, if, on the pleas of non-as- 
 sumpsit and plene administravit, 
 the jury find for the plaintiff, they 
 shouldalso find the amount of the 
 assets in the defendant's hands, un- 
 administered Ibid. 
 
 13. Letters testamentary or of admin- 
 istration, granted in another state, 
 will not authorize the executor or 
 administrator to commence a suit 
 in this state, unless the letters be 
 previously recorded in tlie Circuit 
 Court of "the county in which the 
 suit is commenced.— ^Vayor wMoodii 
 ctal 2-1" 
 
 14. In an action by an administrator 
 de bonis non, the declaration should 
 state the name of the first adminis- 
 trator, and contain an averment of 
 non-payment to him. — Vanbluricum 
 ei id. V. Yeo 322 
 
 15. The settlement of an administra- 
 tor's accounts in the Probate Court 
 is, prima facie, correct ; and a Court 
 of chancery will not interfere with 
 it, except in clear cases of mistake 
 or hand.— Allen v. Clark et <d ...343 
 
 16. If an administrator suffer judg- 
 ment by default, he can not after- 
 wards, by the common law, in an 
 action against him suggesting a de- 
 vastavit, plead plene administravit. 
 Moore V. Martindale 353 
 
 17. The statute of 1822, authorizing, 
 under those circumstances, the plea 
 of plene administravit, does not af- 
 fect cases in which the judgment 
 bv default was suffered previously 
 to the statute Ibid. 
 
 18. The jurisdiction of a Court of 
 chancery extends to the accounts 
 of administrators, though settled 
 in tlie Probate Court, if there be 
 
 evidently a mistake or fraud in the 
 settlement. — Brackenridgev .Holland 
 et al -377 
 
 19. If an administrator, authorized 
 b}' an order of Court to sell, at pub- 
 lic sale, the real estate of liis intes- 
 tate for the jiayment of debt.s, pur- 
 chase the land him.self at the sale, 
 and, afterwards, sell the same at an 
 advanced price, he is liable to ac- 
 count for the profits to the heirs, 
 for whose benefit the administra- 
 tor's purchase must be considered 
 to have been made. And the effect 
 is the same, whether tiie purchase 
 be made by the administrator alone 
 or jointly with another ; or whether 
 it be made in person or by an 
 agent -Ibid. 
 
 20. If, owing to the conduct of the 
 administrator, any uncertainty ex- 
 ist as to the amount of the profits 
 made by him on the purchase, he 
 will be chargeable with the largest 
 amount which, from the circum- 
 stances, he can be presumed to have 
 rea 1 ized .Ibid. 
 
 21. Debt by A, against B., adminis- 
 trator of C, on a bond of the intes- 
 tate for 860 dollars. Damage, 100 
 dollars. Pleas, non est factum and 
 plene administravit. Verdict for the 
 debt, and for 481 dollars and 60 
 cents damages ; in all 1,341 dollars 
 and 60 cerits. Judgment for the 
 same, de bonis propriis, with costs. 
 
 Held, that the judgment is erroneous : 
 1st, because it is de bonis propriis ; 
 and, 2d, becau.se it is for a greater 
 sum than is laid in the declaration. 
 — Johnson v. Hawkins ...459 
 
 22. Held, also that the jury should 
 have not only found the amount of 
 the debt auddamages, but also the 
 amount of assets in the defendant's 
 hands Ibid. 
 
 FAILURE OF CONSIDERATION 
 
 See Chancery, 33 ; Pleading, 6, 14. 
 
 FALSE IMPRISONMENT. 
 See Trespass. 
 
 FALSE RETURN 
 
 See Sheriff, 3-G. 
 
 FEME COVERT. 
 I If a wife commit an indictable of- 
 
 (591)
 
 499-500 
 
 mDEX. 
 
 fence, without the presence or co- 
 ercion of her husband, she alone is 
 responsible for the offence. — Penny- 
 baker v. The State 484 
 
 FIERI FACIAS. 
 See Execution, 3. 
 
 FORCIBLE ENTRY AND DE- 
 TAINER. 
 
 1. Tiie complainant, in an action of 
 forcible entry and detainer, stated 
 that the defendant with force and 
 arms unlawfully and forcibly en- 
 tered upon the plaintiff's land*(par- 
 ticularly described), and him the 
 plaintifi' with force and arms did 
 expel and unlawfully put out of 
 possession : Held, that this com- 
 plaint could not be objected to after 
 verdict, for not showing more par- 
 ticularly that the plaintiff had 
 peaceable possession of the prem- 
 ises before the injury complained 
 of. — Test V. Deters.:.'. 80 
 
 2. The verdict in the Circuit Court 
 for the plaintiff, on appeal, in a 
 case of forcible entry and detainer, 
 must, as on the trial before the jus- 
 tices, be signed by all the jurors. 
 
 Ibid. 
 
 3. A. removed from a house and lot, 
 leaving a few articles in the house 
 and on the lot, and fastened the 
 door. In the night of the second 
 day afterwards — the door being 
 proved to have been still fast on 
 the evening of that day — B. enter- 
 ed into the house and put a tenant 
 in possession, directing him to pre- 
 vent every person, and A. particu- 
 larly, from taking possession, and 
 threatening to beat and prosecute 
 any one who should enter on the 
 premises. Tliere was no direct 
 proof, however, that B. broke open 
 the door. On the complaint of A. 
 against B. for a forcible entry and 
 detainer, held, that the evidence 
 would justify a finding against the 
 defendant as to the forcible entry, 
 and that it was clear against him 
 as to the forcible detainer, which, 
 u_nderthestatute,entitled the plain- 
 tiff to restitution.— £'(77/ v. Coturcll. 
 
 FORMER RECOVERY. 
 1. If a plea of former recovery con- 
 tain sufficient matter to show that 
 tile causes of action in the two suits j 
 
 are the same, and that the merits 
 were determined in the first case, 
 the plea is good ; and it is not es- 
 sential to the validity of the plea 
 that tlie forms of the two actions 
 
 be the same. — Cutlery. Cox 178 
 
 A plea of former recovery to an 
 action on the case founded en tort, 
 can not be objected to merely be- 
 cause the first action was covenant ; 
 the causes of action appearing to 
 
 be the same Ibid. 
 
 If a plea of former recovery aver 
 the causes of action to be the same, 
 and the record do not show them 
 to be different, the averment, on a 
 demurrer to the plea, must be taken 
 
 as true Ibid. 
 
 To an action of covenant for not 
 furnishing such a boat as is re- 
 quired by a contract under seal, 
 accord and satisfaction may be 
 pleaded in bar ; and if, on thetrial 
 of an issue to a replication denying 
 the plea, there be a verdict and 
 judgment for the defendant, the 
 merits'of the case are settled, and 
 the judgment is a bar to any future 
 action, though founded on tort, for 
 
 the same cause Ibid. 
 
 5. To render a former recovery an 
 estoppel to a subsequent suit, em- 
 bracing the same matter in contro- 
 ver.sy with the first, the judgment 
 must be specially pleaded as an 
 estoppel. If it be not so pleaded, 
 and the defendant rely on the gen- 
 eral issue, the former judgment is 
 admissible in eyidence, but it is 
 not a conclusive bar to the action: 
 the jury may still find for the plain- 
 tiff', if they think him entitled to 
 recover.— J"('c(?Me); v. M' Kay 465 
 
 FORNICATION. 
 See Adultery ; Slander, 2. 
 
 FRAUD. 
 See Chancery, 31 ; Covenant, 1 ; 
 Judgment, 4; Pleading, 19; 
 Trespa.ss on the Case, 2; Ven- 
 dor AND Purchaser, 10, 11. 
 
 FRAUDS, STATUTE OF. 
 
 See Executors and Administra- 
 tors, o; Trust and Trustee, 2; 
 Vendor and Purchaser, 34. 
 
 A. and B. purchased jointly a land- 
 office certificate for a tract of laud, 
 on which there were some improve- 
 
 (592)
 
 INDEX. 
 
 500-501 
 
 ments, and the assignment of the 
 certificate was made to A., who 
 had paid more of the purchase- 
 money than B. The purchasers, 
 by a parol agreement, divided the 
 huid. By this agreement, A. re- 
 ceived several acres more than B., 
 together with the improved part of 
 the premises, and was to pay B. a 
 certain sum as the difference in 
 value of the two parts, and to as- 
 sist B. in improving his part. Each 
 of the parties took possession of his 
 own part of the premises. Held, 
 that the agreement was not affect- 
 ed, in equity, by the statute of 
 frauds. — Gree^i ei al v. Vardivian et 
 al 324 
 
 FRAUDULENT CONVEYANCE. 
 
 See Ejectment, 2 ; Lis Pendens ; 
 
 Vendor and Purchaser, 25. 
 
 1. The heirs of A. filed a bill in 
 chancery against the administra- 
 trix and heirs of B. The bill states 
 that B., deceased, was the adminis- 
 trator of the estate of the com- 
 
 . plainants' father ; that he sold the 
 property which came into his 
 hands as administrator for a 
 large amount, the most of which 
 he converted to his own use ; and 
 that his estate is insolvent. It fur- 
 ther states that B., in his life-time, 
 conveyed a certain tract of land to 
 his son, one of the defendants, for 
 the purpose of defrauding the com- 
 plainants. The prayer of the bill 
 is, that a decree be rendered for 
 the amount of the complainants' 
 claim, and that the land so fraudu- 
 lently conveyed be sold to satisfy 
 the same. The bill was taken pro 
 confesm. 
 
 The Court, on examination of the bill, 
 allegations, and proofs, decreed 
 that the defendants should pay to 
 the comphiiuanls the sum of 491 
 dollars; and, if the same were not 
 paid on service of a copy of the de- 
 cree, the land should be sold, &c. — 
 Sweny et al. v. Ferguson et ul 129 
 
 2. A. obtained judgment against B. 
 on a note, and purchased, at the 
 sheriff's sale under the judgment, 
 a tract of land which B., after the 
 date of the note and before the 
 judgment, had conveyed to C. A. 
 brought an action of ejectment for 
 the land against C, and the ques- 
 tion was, whether B.'s deed to C. 
 
 Vol. II.— 38 
 
 (593) 
 
 was fraudulent and void as to A. 
 Held, that evidence of B.'s having, 
 stated, that the consideration of 
 the deed to C. was a valuable one, 
 was not admissible. Held, also, that 
 the note on which the judgment 
 was rendered was admissible to 
 show the existence of the debt be- 
 fore the date of the deed. — Doe d. 
 Helm V. Neuiand 2o3 
 
 3. A wife has a lawful claim upon 
 her husband for her maintenance ; 
 and if, during the pendency of her 
 petition for a divorce and alimony, 
 a conveyance of his land be execu- 
 ted by the husband in order to de- 
 fraud his wife of her right to a 
 support, and be received by the 
 grantee wiih the same fraudulent 
 design, the conveyance as to her is 
 void. — Frakes v. Brown 295 
 
 4. A deed, fraudulent as to a judg- 
 ment-creditor, may beset aside at 
 the suit of the purchaser at sher- 
 iff's sale under the judgment.. /6(V?. 
 
 5. To render a deed fraudulent and 
 void as to creditors, there must be 
 fraud in the grantee as well as in 
 the grantor [bid. 
 
 6. A person indebted to several oth- 
 ers and in insolvent circumstances, 
 executed a conveyance of his real 
 estate to his children, in consid- 
 eration of a nominal sum and of 
 natural love and affection, and 
 with an intent to defraud his 
 creditors. Two of the grantees were 
 daughters and afterwards mar- 
 ried. The grantor continued in 
 possession, contracted other debts 
 subsequently to the deed, and died 
 insolvent, field, that the convey- 
 ance was voluntary, and fraudulent 
 and void as to the creditors of the 
 grantor.— 0'.Br/e;» et ul v. Coulter el 
 al 421 
 
 FRAUDULENT JUDGMENT. 
 
 A person against whom suits were 
 depending for bona fide debts, con- 
 fessed a judgment in favor of an- 
 
 • other, without consideration, to de- 
 fraud his creditors. The debtor's 
 real estate was purchased, under an 
 execution on this judgment, by the 
 judgment-creditor. .Judgments were 
 afterwards obtained, by the bona 
 fide creditors, in their respective 
 suits, and executions issued there- 
 on and returned "no property 
 found." The Court, on a bill filed
 
 501 
 
 INDEX. 
 
 by the bona fide creditors, set aside 
 the fraudulent judgment, execu- 
 tion, and sale, and ordered the land 
 to be sold to satisfy the complain- 
 ants' demand. — Braner el al v. Man- 
 ville et al 485 
 
 G. 
 
 GAMING. 
 
 See Jurisdiction, 3. 
 
 GUARDIAN AND WARD. 
 
 1. An infant, after his guardian's 
 death, has a right to compel a set- 
 
 . tlement of his accounts as if he 
 were of age ; the guardian's trust 
 being personal, and terminating at 
 his death. — Pech et al v. Braman et 
 al 141 
 
 2. In the case of a guardianship un- 
 til the ward is of full age, liie gen- 
 eral rule is, that the ward must be 
 of age before he can require his 
 guardian to account ; yet, in chan- 
 cery, award may, during his minor- 
 ity, call such a guardian to account, 
 if" any thing should occur which 
 makes it necessary Ibid. 
 
 3. The guardianship of minors, and 
 the adjustment of their accounts, 
 form a conspicuous branch of chan- 
 cery jurisdiction... Ibid. 
 
 H. 
 HUSBAND AND WIFE. 
 See Abatement, 3 ; Alimony ; Feme 
 Covert ; Fraudulent Convey- 
 ance, 3. 
 
 I. 
 
 ILLEGITIMATE CHILDREN. 
 See Bastardy. 
 
 INDEMNITY. 
 
 See Sheriff, 4, 5. 
 
 INDICTMENT. 
 
 See Costs, 2, 3 ; Error, 4 ; Malicious 
 Trespass ; Perjury, 2 ; Receiv- 
 ing Stolen Goods. 
 
 1. An indictment for an assault with 
 intent to commit a felony, must 
 show with certainty the particular 
 felony intended to be committed. — 
 The Stale V. Hailstock 257 
 
 2. A common assault is not an indict- 
 able offence. It is punishable, bow- 
 ever, by a justice of the ]R'ace../6irf. 
 
 3. An indictment for retailing spiri- 
 
 (5 
 
 luous liquors to div.rs persons 
 without license, is bad. It should 
 either contain the names of the 
 person to whom the sale was made, 
 or state their names to be un- 
 known.— TAe State V. Stuckij 289 
 
 INDORSEMENT. 
 
 See Bond, 1, 4, 5 ; Promissory Notes, 
 2-7. 
 
 INFANT. 
 
 See Ejectment, 3 ; Guardian and 
 
 Ward. 
 
 INQUIRY, WRIT OF. 
 
 See Bond, 6, 9 ; Damages, 1, 4-7. 
 
 L The appearance of a defendant on 
 the execution of a writ of inquiry, 
 without objecting to the previous 
 proceedings, cures any irregulari- 
 ties as to the time when the capias 
 was executed or the declaration 
 filed. — White v. Rankin et al 78 
 
 2. The awarding of a writ of inquiry 
 after the defendant's failure to ap- 
 pear on being called, without the 
 previous entry of an interlocutory 
 judgment, is a mere informality, 
 and can not be assigned for error. 
 Ibid. 
 
 INSOLVENT LAWS, EFFECT OF 
 DISCHARGES UNDER. 
 
 1. A debtor was discharged, under 
 an insolvent law of Ohio, as to the 
 imprisonment of his person, from a 
 debt due to the payee on a promis- 
 sory note. The parties resided in 
 Ohio, and the debt was there con- 
 tracted. Held, that the debtor 
 might plead the discharge, so far 
 as respected theimprisonmentof liis 
 person, in bar of an action brought 
 against him in this state on the 
 note by an assignee thereof. — Puyh 
 V. Bussel 366 
 
 2. A., having become indebted to B. 
 in the state of Ohio, where they 
 both resided, gave his note to B. 
 for the debt dated in' 1821. In 
 1823, the parties being still resi- 
 dent in Ohio, A. took the benefit of 
 the insolvent law of that state, and 
 was discharged, so far as respected 
 arrest and imprisonment, from all 
 Iiis debts, that of B. among the 
 rest. Afterwards, A. removed to 
 this state ; and, to an action against 
 liim on the note, brought by C., the 
 
 94)
 
 INDEX. 
 
 501-502 
 
 the assignee of B., he pleaded — in ' 
 discharge of his person from arrest j 
 or imprisonment for the debt — his | 
 above-mentioned discharge in Ohio. 
 Held, on general demurrer, that the 
 plea was good. — Pugh v. Bmsel..S94: 
 
 3. Until congress exercise the right 
 of passing uniform laws on the sub- 
 ject of bankruptcy, any state may 
 enact a bankrupt law not impairing 
 the (il)ligation of contracts Ibid. 
 
 A. A state law merely discharging 
 the person of the debtor from im- 
 prisonment, not his after-acc^uired 
 property, for debts contracted in 
 the state between its citizen.s, is 
 constitutional — whether the debt 
 was contracted before or after the 
 passage of the law. But, if the law 
 discharges the debtor's after-ac- 
 quired property as well as his per- 
 son, a discharge under it is not 
 valid unless the creditor make him- 
 self a party to the proceedings 
 which lead to the discharge. ..iiiV/. 
 
 5 A discharge, by a state law, has 
 no operation out of the slate over 
 contracts not made and to be car- 
 ried into effect .within the state; 
 nor over the citizens of other states, 
 who do not make themselves par- 
 ties to the proceedings under the 
 law Ihid. 
 
 6. A discharge under an insolvent 
 law, of the person and not of 
 after-accjuired property, may be 
 pleaded in discharge of the per.son 
 from imprisonment ; and the judg- 
 meni lor the plaintiff, if the plea be 
 supported, is, that he recover his 
 debt, &c., to be levied not on the 
 per.son of the defendant, but only 
 on his property Ibid 
 
 INSTRUCTIONS TO JURY. 
 See Court, 1,2; Interest, 5 ; Jury, 
 
 3,7. 
 
 1. If a new contract be made re- 
 specting money previously lent, 
 and a new security be given, the 
 interest should be calculated up to 
 the time of the new contract and 
 added to the principal ; but this 
 calculation is not to l)e made at 
 every agreement for forljearance of 
 payment where no change is made 
 in the securities. — Harvey v. Craiv- 
 J'ord etdl 43 
 
 2. Whenever a sufficient payment is 
 made, the interest must he. tirst di.'^- 
 
 charged ; but if the payment be 
 less than the interest, the balance 
 of the interest does not become 
 principal Ibid 
 
 3. It is a general rule that interest is 
 not allowable on the open, unliqui- 
 dated accounts of merchants. — 
 Sheivel v. Givan 312 
 
 4. Witnes.ses are not admissible to 
 prove a custom of merchants in 
 the city of another state allowing 
 them to charge ir,:ciest on their 
 accounts, when the Courts of that 
 state have refused to recognize the 
 custom Ibid 
 
 5. Interest was charged by the plain- 
 tiff on an account for goods sold 
 for which he sued. Held, that, all 
 the evidence not being shown, he 
 could not, in error, complain of the 
 instructions to the jury, that they 
 might allow interest or not, at 
 their discretion Ibid 
 
 ISSUE. 
 See Pleading, 13 ; Practice, 2. 
 
 1. The issue on nul tiel record is for 
 the Court, not for the jury to de- 
 cide. — Barker V. M'Qure 14 
 
 2. Issues on three pleas in bar to the 
 whole cause of action. The first 
 triable by the Court ; the second 
 and third by a jury. The second 
 and third were tried and found for 
 
 . the plaintiff. Held, that the plain- 
 tiff could not have judgment until 
 he had also succeeded on the first 
 issue Ibid. 
 
 3. Two pleas in bar to the whole 
 cause of action. An issue in law 
 on one and of fact on the other. 
 Verdict for the plaintiff. Held, 
 that final judgment could not be 
 rendered « n the verdict, until tiie 
 issue in law was disposed of. — Riley 
 el al. V. Harkness 34 
 
 4. Assumpsit on a promissory note. 
 Two pleas, l.st, non-assumpsit and 
 issue; 2d, as to part, a failure of 
 consideration. Replication as to 
 the second plea, demurrer and judg- 
 ment for the plaintiff. Held, that, 
 whilst the fir.st issue was undisposed 
 of, the plaintiff could not have final 
 judgment for the amount of the 
 note. — Mitchell v. Sheldon el al ...185 
 
 JOINDER. 
 
 See Demurrer : Replevin, 3. 
 1. If the plaintifi, in an action against 
 
 (595)
 
 502-503 
 
 INDEX. 
 
 two, proceed to judgment against 
 one alone, and the record do not 
 contain a .return of the writ that 
 the other liail not been found, and 
 a suggestion of such a return, the 
 judgment will be reversed on error. 
 
 King V. Anthony 131 
 
 2. If a suit be brought on a collect- 
 or's bond against the principal and 
 sureties, it is error to take judg- 
 ment against the sureties alone, 
 without a suggestion on the record 
 of the sheriff's return to the writ 
 of "non est inventus" as to the 
 principal. — Thompson et al. v. The 
 Goiernor 142 
 
 JUDGE. 
 See Trespass. 
 
 JUDGMENT. 
 See Disseisin, 3 , Executors and 
 AnMIXlSTRATORS, 11, 15-18, 21. 
 Fraudulent Judgment; Lien, 1 ; 
 Replevin, 7, 8. 
 
 1. A scire facias was issued by a jus- 
 tice of the peace in Ohio, on the 
 transcript of a judgment of another 
 justice there ; and, on a return of 
 the writ " not found." judgment 
 was rendered for the plaintiff. On 
 that judgment, an action was 
 brought in a justice's Court of this 
 state. Htld, that the judgment, 
 having been rendered without sei'- 
 vice of the writ, or the return of 
 two niliils, would not, on common 
 law principles, support the action. 
 Held, also, that if the judgment was 
 authorized, by a statute of Ohio, on 
 one return of " not found," the dec- 
 laration should have shown that 
 fact.— C'w V. Cotton et al. 82 
 
 2. file constitution of the United 
 States, requiring full faith and 
 credit to ije given in each state to 
 the judicial proceedings of every 
 other state, does not apply to a 
 judgment which has been rendered 
 without the defendant's having had 
 legal notice of the suit Ibid. 
 
 3. The judgment of a Court of record 
 of competent jurisdiction in one 
 state, fairly obttiined, where the de- 
 fendant had personal notice of the 
 suit, is conclusive between the par- 
 ties in an action on it in any other 
 state; and the circumstance that 
 judgment is against the defendant 
 as sjiecial bail, makes no difierence. 
 —Boll v. Allmuuj 108 
 
 4. To an action on the judgment of a 
 Court in another state, the defen- 
 dant may plead that the judgment 
 was obtained by fraud, or that the 
 Court had no jurisdiction of the 
 person or of the subject-matter. Ibid 
 
 5. A judgment obtained conformably 
 to the laws of the state against a 
 person resident therein, without 
 personal notice of the suit, is not 
 conclusive against him in an action 
 on it in another .state ; nor is such 
 judgment absolutely void as the 
 judgment of a Court having no ju- 
 ri.'sdiction. The judgment, in such 
 case, stands on the same footing 
 with a foreign judgment ; and if it 
 be against special bail, he may, in 
 an action on it in another state, 
 plead that no ca. sa. had issued 
 against his principal Ibid. 
 
 6. A judgment, after being replevied 
 by the execution of a replevin- 
 bond, was assigned. Held, that pay- 
 ment by the debtor on his replevin- 
 sureties to the original judgment- 
 creditor, before notice of the assign- 
 ment, was valid. — Gamble et al. v. 
 Cummins 235 
 
 7. If a debtor pay his judgment-cred- 
 itor a sum equal to the amount of 
 the judgment, and thereby cause 
 the judgment to be assigned as a 
 payment to another of his creditors, 
 the transaction does not discharge 
 the judgment, but the same con- 
 tinues valid in the hands of the 
 assignee. — Hou-k v. Kimball et «/.309 
 
 JURISDICTION. 
 See Chancery, 4-6, 11, 25; Di- 
 vorce, 1 ; Executors and Admin- 
 istrators, 15, 18; Guardian and 
 Ward, 3 ; Judgment, 4, 5 ; Jus- 
 tice OF THE Peace, 1, 2, 8 ; Slan- 
 der, 1 ; Trespass, 2-5. 
 
 1. In an action of debt before a justice 
 of the peace, on a bond in the pen- 
 alty of 175 dollars conditioned for 
 the delivery of property, the plain- 
 tifl', in the statement of his demand, 
 claimed 81 dollars and 25 cents; 
 Held, that the justice had jurisdic- 
 tion ; the sum actually demanded 
 not exceeding 100 dollars. — Wash- 
 burn ct (d. v. Payne 216 
 
 2. A justice of Uie i)eace, under the 
 statute of 1827, has jurisdiction in 
 actions of debt on penal bonils con- 
 ditioned for the ]ierformance of 
 covenants, when the penalty does 
 
 (596)
 
 INDEX. 
 
 503-f)04 
 
 not exceed 100 dollars. — Evami et 
 al. V. Shoemaker 237 
 
 3. The winning of any sum of money, 
 however small, at a game with 
 cards, is an indictable ofience of 
 which the Circuit Court has exclu- 
 sive jurisdiction. — The Stale v. At- 
 hertson 251 
 
 4. Offences punishable by a fine not 
 exceeding three dollars belong ex- 
 clusively to the jurisdiction of jus- 
 tices of the peace. Other offences, 
 punishable by a fine which may be 
 more or less than three dollars ac- 
 cording to circumstances, are cog- 
 nizable only bv the Circuit Court. 
 
 Ihid. 
 
 5. Trespass de bonis asportatis. Plea, 
 that the defendant, as a justice of 
 the peace, had entered a fine against 
 the plaintiff' for an assault commit- 
 ted by him in the defendant's pres- 
 ence. Held, on demurrer, that the 
 plea was bad, because it did not 
 show but that the fine was imposed 
 in the offender's absence. — Logan v. 
 Siggerson 266 
 
 6. A justice of the peace has jurisdic- 
 tion of a cause commenced by no- 
 tice and motion, if the notice .set 
 forth a claim, not exceeding 100 
 dollars, for which debt or assump- 
 sit would lie. — Cotvgill v. Woode7i 
 
 332 
 
 JURY. 
 
 1. The circumstance that some of the 
 grand jurors who had found an in- 
 dictment, were above sixty years of 
 age is no objection to the indict- 
 ment.— TAe State \. Miller 3-5 
 
 2. The statute of 1824 excuses per- 
 sons above sixty years of age from 
 serving on juries, if they choose to 
 claim the privilege; bnt the party 
 indicted can not object to them on 
 that ground Ibid. 
 
 3. The jury, about to retire to con- 
 sider of (heir verdict, were instruc- 
 ted by the Court, that should they 
 agree before the meeting of the 
 Court on the following day, they 
 might seal up their verdict, dis- 
 perse, and hand in their verdict on 
 
 . the next morning. The jury gave 
 in their verdict on the next morn- 
 ing. Held, 1st, that as the record 
 did not show the dispersion of the 
 jury, no objection founded on their 
 dispersion could be noticed on a 
 writ of error ; 2d, that as tlie in- 
 
 struction was not objected U. when 
 given, the dispersion., were :■ shown 
 could not be assigiiei.! fm error 
 Bosleyv. Farquar et at 16 
 
 4. If one of the petit jurors, sum- 
 moned to try an indictment, was on 
 the grand jury that found the bill, 
 the defendant m:iy challenge him. 
 But lie can not, on that ground, 
 move for a new trial after a verdict 
 of guilty, if he knew of the object- 
 ion, and omitted to make it, when 
 the jury was impaneled. — Barlov v. 
 The State..... ^ 114 
 
 5. The affidavits of jurors may be re- 
 ceived in support of their verdict, 
 but not to impeach it /6k/. 
 
 6. If a juror, during the trial of a 
 cause, converse with a by-stander, 
 or leave the Court room, without 
 consent of the Court, it is a misde- 
 meanor for which he may be pun- 
 ished. But if the investigation of 
 the cause was not interrupted, if 
 nothing took place which could in- 
 fluence the juror, and if no attempt 
 was made to tamper with him, the 
 misconduct will not entitle the de- 
 fendant to a new trial, after a ver- 
 dict against him, even in a case of 
 manslaughter Ibid. 
 
 7. The jury are the judges of the 
 facts, both in civil and crimin:>l 
 cases ; but they are not, in either, 
 the judges of the law. They are 
 bound to find the law as it is pro- 
 pounded to them by the Court. 
 They may, indeed, find a general 
 verdict, including both the law and 
 the facts; but if, in such verdict, 
 they find the law contrary to the 
 instructions of theCourt,they there- 
 by violate their oath. — Townsend v. 
 TheState 151 
 
 8. A party has the same right to a 
 jury, in a cause commenced by no- 
 tice and motion, that he has in 
 other cases.— 'Co?('r/i7/ v. Wooden-'.iZ"! 
 
 9. If the sheriff, a party in the cause, 
 have summoned the jurors selected 
 under the statute of 1827, the array 
 mav, for that reason, be challenged. 
 
 Ibid. 
 
 10. A person under a prosecution for 
 a capital offence about to be sub- 
 mitted to a grand jury, may chal- 
 lenge any of the grand jurors for 
 cause, but not peremptorily. — Joiie^ 
 V. The State 47-"> 
 
 11. One of the grand jurors in such a 
 case, in answer to a question put 
 
 (597)
 
 504 
 
 INDEX. 
 
 lo him by the prosecuting attorney, 
 said, "that he thought he could 
 not in his conscience tind any man 
 guilty of an offence that would sub- 
 ject him to death." Held, that the 
 juror was disqualified Ibid. 
 
 12. Challenges to petit jurors nre first 
 made by the prisoner, and after- 
 Avards bV the prosecuting attorney 
 
 Ibid. 
 
 13. The record in a capital case 
 showed that, after the petit jury 
 were sworn, the Court adjourned 
 from one day to the next, but it 
 did not show that the jury were 
 legally disposed of during the ad- 
 journment. Held, that a verdict 
 and judgment against the defend- 
 ant must, under those circum- 
 stance be considered erroneous. 
 
 Ibid. 
 
 JUSTICE OF THE PEACE. 
 See Indictment, 2 ; Judgment, 1 ; 
 Jurisdiction; Oyer, 2; Recog- 
 . nizance, 1,2; Slander, 1 ; Tres- 
 pass. 
 
 1. Indictment for an assault and bat- 
 tery. Plea, that before the com- 
 mencement of the prosecution, the 
 defendant had been arrested on the 
 warrant of a justice of the peace of 
 the county for the charge set forth 
 in Uie indictment ; and that, after 
 a full examination of the case, the 
 justice had acquitted liim of the 
 offence. Held, on demurrer, that 
 the plea was a good bar to the pros- 
 ecution. — The State v. M'Cory 5 
 
 2. The statute, authorizing justices 
 of the peace to punish trivial 
 breaches of the peace by fine not 
 exceeding three dollars, is not un- 
 constitutional ; and it is discretion- 
 ary with the justice whether to try 
 a charge of a breach of the peace 
 himself, or to recognize the defend- 
 ant to answer the same at the next 
 term of the Circuit Court Ibid. 
 
 3. If satisfaction of a judgment be 
 entered by a justice of the peace 
 on his docket, he and his sureties 
 are liable for the amount to the 
 judgment-creditor; no matter for 
 what consideration the satisfaction 
 was entered, unless tlie creditor was 
 a party to the arrangement. — I\Iod- 
 isett V. The Governor 1.35 
 
 4. On the docket of justice A., which, 
 for some reason not shown, was in 
 justice B.'s hands, there was a re- 
 
 ceipt purporting to be signed by B. 
 of a judgment there entered: Held, 
 that the receipt was not admissible 
 as evidence ngainst B., without 
 proof of his having executed it. 
 
 Ibid. 
 
 5. Debt before a justice of the peace 
 on a l)ond in a penalty less than 
 100 dollars, conditioned for the 
 performance of covenants. Held, 
 that no statement of the demand, 
 except the filing of the bond, is in 
 such case necessary. Held, also, 
 that no suggestion of breaclies is 
 required in such a case. — Evans et 
 al. V. Shoemaker 237 
 
 6. The statute of 1827 requires that, 
 in justices' Courts, special matters 
 of payment and set-off' should be 
 stated in writing; but, in other 
 cases generally, special pleas are 
 not necessary in those Courts. — 
 Couxjill V. Wooden 332 
 
 7. In a cause commenced in a jus- 
 tice's Court, the defendant may, 
 without pleading the general issue, 
 give any matters in evidence which, 
 under that plea, are admissible in 
 other Courts Ibid. 
 
 8. The jurisdiction of justices of the 
 peace does not extend to cases in 
 which an executor or administra- 
 tor is either plaintiflT or defendant. 
 — Simonds v. Calvert et al 413 
 
 LANDLORD AND TENANT. 
 
 See Contract; Covenant, 2-6 ; Dis- 
 tress ; Execution, 2. 
 
 1. The under lessee of real estate has 
 a right to jnirsue thereon any law- 
 ful business he chooses, which is 
 not ])rohibited I)y the lease to his 
 lessor nor by that to himself: and 
 whicii is not injurious to the prem- 
 ises. — Taylor v. Oiven et al .301 
 
 2. Same point decided. — Taylor v. 
 3IoffaU et al 304 
 
 LEASE. 
 See Covenant, 2-6 ; Landlord and 
 
 Tenant. 
 
 LEX DOMICILII. 
 See Divorce, 3. . 
 
 LICENCE. 
 See Spirituous Liquors, Retailing 
 
 (508)
 
 INDEX. 
 
 505 
 
 LIEN. 
 See Alimony; Covenant, 3; Tkover. 
 3 ; Vendor and Purchaser, 16, 33, 
 
 1. The lien of a judgment is not ex- 
 tinguished by the execution of a 
 replevin-bond, but continues until 
 the judgment is actualij' satisfied. 
 —Doe d. ^Sheets v. Boe 195 
 
 2. If a person have a lien on goods 
 for the price of hauling them to a 
 place of deposit, his subsequently 
 claiming them as his own, and re- 
 fusing, on that ground, to deliver 
 them to the owner, is a waiver of 
 the lien. — Picquet v. JSVKay 465 
 
 3. If A. deposit with B. a quantity of 
 grain for safe keeping, and, at the 
 time of making the deposit, borrow 
 money and buy goods on credit of 
 B., the law creates no lien for the 
 debt on the grain, in the absence 
 of any agreement to that efiect. 
 
 Ibid. 
 
 LIMITATIONS, STATUTE OF. 
 See Bastardy, 5 ; Partnership, 8. 
 
 1. At the foot of an account con- 
 taining several items, charged in 
 
 1817, there was the following ac- 
 knowledgment : "I acknowledge 
 the above account to be just — Tho. 
 Neighbors." Held, that this ac- 
 knowledgment was a written con- 
 tract which, under the act of as- 
 sembly, was not barred by the stat- 
 ute of limitations. — Neighbors v. 
 Simmona 75 
 
 2. In 1804, the father of B. and C. de- 
 livered to B., in England, 75/., with 
 directions to pay the same to C. on 
 the latter's arrival in ,\merica. In 
 
 1818, C. came to America where B. 
 was then resident, and accounts on 
 both sides immediately commenc- 
 ed between them, and continued 
 running until 1826. The 75/. was 
 charged in the account of C. against 
 B. Held, that these mutual ac- 
 counts, including the 75/., were not 
 within the statute of limitations; 
 some of the items having been fur- 
 nished within five years before the 
 commencement of the suit. — Knipe 
 v. Knipe 340 
 
 LIS PENDENS. 
 See Fraudulent Conveyance, 3 ; 
 
 Vendor and Purchaser, 24. 
 1. The pendency of an action of slan- 
 der does not, of itself, render the 
 
 (5 
 
 defendant's sale and conveyance of 
 real estate void as to the plaintiff: 
 though a judgment be afterwards 
 recovered against the defendant, 
 and he have no other property to 
 satisfy the debt. — Ray et el. v. Hue 
 
 d. Broim ■■ 258 
 
 2. The pendency of an action is con- 
 structive notice of the matter in- 
 volved in that suit : and a piir- 
 chaser of the property which is the 
 immediate object of the pending 
 action will be affected by it, as a 
 purchaserwith notice Ibid. 
 
 LOST BOND. 
 See Evidence, 5. 
 Debt oh a bond. Plea, a failure of 
 consideration, in consequence of the 
 non-performance, by the obligee, of 
 the condition of a certain bond 
 which was lost. Held, that the loss 
 of the bond did not j^reclude the 
 defence.- Pe7ice (/ «/. v. Smock ...315 
 
 LOST RECORD. 
 See Evidence, 5. 
 
 M. 
 
 MALICIOUS PROSECUTION. 
 
 1. A made an affidavit before a jus- 
 tice of the peace, stating that he 
 had lost certain goods, which he 
 believed were concealed in the pos- 
 session of B. The justice thereupon 
 issued a warrant against B. for 
 larceny. B. was arrested on the 
 warrant and afterwards acquitted. 
 Held, that A.'s af^davit contained 
 no criminal charge, and that he 
 was not therefore lial>leto B. in an 
 action for a malicious prosecu- 
 tion.— M 'Neely v. DriskiU 259 
 
 2. Case by A. against B. Counts in 
 malicious pro.secution for perjury, 
 and in slander for words charging 
 the same crime. Plea, that .\. had 
 committed the perjury alleged. 
 Held, that B. might prove, on the 
 trial, that A. had given advice as 
 to the best mode of commencing 
 the suit against B., in support of 
 which A. was said to have after- 
 wards committed i)erjury ; and 
 might also jirove that A. had re- 
 ceived information, before he gave 
 his evidence, tending to show the 
 want of any foundation for the suit 
 against B. — Scott v. Morlsinr/ei:..A^^ 
 
 3. Held, also, that the defendant, un- 
 
 99)
 
 505-506 
 
 INDEX. 
 
 der the plea in this case, might 
 show that there was a probable 
 cause for his prosecution against 
 
 the i)lnintiff Ibid. 
 
 4. The plaintiff, in the above-men- 
 tioned cause, in order to show ma- 
 lice in the defendant, had a right 
 to prove that the slanderous words 
 charged in the declaration had 
 been spoken after, as well as before, 
 the commencement of the suit. 
 
 Ibid. 
 
 MALICIOUS TRESPASS. 
 An indictment charged the defendant 
 with having, by shooting, malici- 
 ously wounded and injured a young 
 mare, the property of A.,- of the 
 value of 80 dollars! Held, that the 
 indictment was bad, under the sta- 
 tute, for not stating the amount of 
 damages occasioned by the injury 
 complained of. — The Stale v. Peden. 
 
 371 
 MARRIAGE. 
 See Abatement, 3. 
 In an action for a breach of promise 
 of marriage the plaintiflf may in- 
 troduce evidence of seduction. — 
 Whale7i\. Layman 194 
 
 MEASURE OF DAMAGES. 
 
 See Dam.ages, 2, 3, 5; Seat of Jus- 
 tice, 3; Vendor and Purchaser, 
 
 20. 
 
 MERCHANTS' ACCOUNTS. 
 See Interest, 3-5. 
 
 MILITIA FINES. 
 
 See Pleading, 12. 
 
 1. An alias or pluries list of militia 
 fines may be issued by the judge 
 advocate against the delinquents, 
 whether they be persons conscien- 
 tiously scrupulous of bearing arms 
 or not; and it is not necessary for 
 such list to be, like an execution, 
 in the name of the state. — Levelling 
 V. Leaieil 163 
 
 2. An action on a sheriff's bond, for 
 not collecting militia fines due to 
 the county seminaries, lies in the 
 name of the state on the relation 
 of the treasurer, who is the trustee 
 of the hind.— The Slate v. M'Clune 
 ctal 192 
 
 MISTAKE. 
 
 1. A., being the agent of a county, 
 
 sold certain town lots belonging to 
 the county to B., and gave him a 
 title-bond for the same. The bond 
 was. by mistake and contrary to 
 the intention of both parties, so 
 drawn and executed as to appear 
 obligatory on A. personally. Held, 
 that the mistake could not be 
 pleaded in bar to an action at law 
 against A. on this bond. — Lindley v. 
 
 Cravens 426 
 
 2. Held, also, that after a judgment 
 obtained against A. on the bond, he 
 might, by a bill in chancery, have 
 the judgment enjoined, and the 
 mistake in the bond corrected ; but 
 tiiat the county as well as B. must 
 be made a party to the suit. ..Ibid. 
 
 MORTGAGE. 
 
 See Vendor and Purchaser, 9. 
 
 1. If a person, holding a bond for 
 the payment of money secured by 
 a mortgage on real estate, proceed 
 first upon the mortgage, he is pre- 
 cluded by the statute of 1824 from 
 any other remedy. But he may 
 proceed first upon the bond to judg- 
 ment, sell the mortgaged property 
 on execution, and hold the obligor 
 liable for any balance that may re- 
 main due; in case the obligee 
 waives his claim under the mort- 
 gage, and the purchaser at sheriflf's 
 sale hokk the land freed from the 
 mortgage. — Youse v. ]\I'Cre.ary..243 
 
 4. A person, holding a bond and mort- 
 gage for a debt, may proceed first 
 by an action on the bond, and sub- 
 ject all the deV)tor's ]iro|)erty both 
 real and personal to his judsment, 
 without abandoning his lien on the 
 mortgaged premises, unless he have 
 taken them in execution. But if 
 the creditor elect to proceed first on 
 his mortgage, he is obliged by the 
 statute of 1824 to rely alone on the 
 mortgaged premises for a satisfac- 
 tion of his demand. — JSlaikle el ah v. 
 Rapp €t at 465 
 
 NEW TRIAL. 
 
 See Error, 2, 3. 5, 9, 10 ; Jury. 4-6. 
 
 A new trial should not be granted in 
 an action on tort, on the ground 
 that the damages are excessive, un- 
 less they appear at first blush to be 
 outrageous and excessive. — Pirijuet 
 y.M'Kay 43') 
 
 (600)
 
 INDEX. 
 
 506-507 
 
 NOLLE PROSEQUL 
 A nolle profsefjui to the whole declara- 
 tion has the effect, not of a retraxit, 
 but of a discontinuance; and is no 
 bar to a subsequent suit for the 
 same cause. — Lambert v. Sanford. 
 
 137 
 NONSUIT. 
 See Replevin, 8. 
 
 NOTICE. 
 
 See Lis Pendens, 2 ; Vendor and 
 
 Pltrchaser, 2, 30. 
 
 NOTICE AND MOTION. 
 
 See Jurisdiction, 6 : Jury, 8 ; Rec- 
 ords; Burned. 
 
 NUL TIEL RECORD. 
 See Issue, 1. 
 
 O. 
 
 OATH. 
 
 See Perjury. 
 
 OYER. 
 
 1. Oyer of a record is nev^r granted. 
 Cupp V. Gilman 45 
 
 2. Although over of a record is not 
 demandable, yet if profert of the 
 record of a judgment on which the 
 suit is brought be made and oyer 
 granted, the defendant may demur 
 if the judgment be of no validity. 
 So, if the judgment be of a justice's 
 Court in another state, which is not 
 a Court of record. — Cone v. Cotton 
 etal 82 
 
 3. To deny oyer where it ought to be 
 granted is error, but not e conrer.fo. 
 — The State v. Hicks el al 336 
 
 PARENT AND CHILD. 
 
 L A father may claim the services 
 of his cliildren, whilst they are 
 under lawful age and are support- 
 ed by him. But should he, at any 
 time, relin(iuish that claim, the 
 {)i'ofits of his children's labor then 
 belong to themselves, and can not 
 be seized l>y the creditors of the 
 father. — Jenisoii etal. v. Gravesetal. 
 
 440 
 
 2. If a son of full age purchase land 
 to be paid for in labor, and his 
 father being employed for the pur- 
 pose by the son, perform a part of 
 the work ; or if tlie payiuont is to be 
 
 (00 
 
 in money, and the father lend his 
 son a part of the money with which 
 the payment is made— a trust pro 
 ianto, will not, in either of those 
 cases, result to the father Ibid. 
 
 PAROL AGREEMENT. 
 See Contract. 
 
 PAROL EVIDENCE. 
 See Evidence, 5, 6, II ; Trust and 
 Trustee, 2, 7, 11; Vendor and 
 Purchaser, 9, 28. 
 
 PARTIES. 
 
 See Abatement ; Chancery, 22, 23, 
 29 ; Joinder ; Militia Fines, 2 ; 
 Mistake, 2 ; Pleading, 7 ; Re- 
 plevin, 1, 2, 3 ; Trust and Trus- 
 tee, 4 ; Vendor and Purchaser, 9. 
 
 1. The defendant had signed a sub- 
 scription paper promising to pay 
 a certain sum of money towards ile- 
 fraying the expenses of erecting 
 the public buildings at Conners- 
 ville, provided a new county should 
 be established, and Connersville be 
 made the seat of justice, the money 
 to be paid into the hands of any 
 person whom the board of commis- 
 sioners of the new county should 
 authorize to receive it. Held, that 
 the county agent, having no legal 
 or beneficial interest in the con- 
 tract, could not sue upon it in his 
 own name. — Harper v. Maf/an 39 
 
 2. If the agent had been specially ap- 
 jDointed by the commissioners to 
 receive the money, which was to be 
 paid to any person thus appointed, 
 that circumstance would not have 
 authorized a suit in his own name. 
 
 Ibid. 
 
 3. Sembte, that if one person promise 
 another for the benefit of a third, 
 the third person may sue Ibid. 
 
 PARTNERSHIP. 
 
 See Evidence, 2, 3, 6. 
 1. The doctrine that tlie separate 
 debt of one partner should not be 
 paid out of the partnership estate, 
 until all the debts of the firm are 
 discharged, is correct ; but it does 
 not apply until the partners cease 
 to have a legal right to dispose of 
 their property as tliey please It 
 is applicable only when the prin- 
 ciples of eipiity .'ire i>rought to in- 
 terfere in the distribution of tlie 
 
 1)
 
 507 
 
 INDEX. 
 
 partnership property among the 
 creditors. — M^ Donald et «/. v. Beach 
 etal 55 
 
 2. Those e([uitable principles operate 
 on the property remaining in the 
 possession of the partners, and em- 
 brace all that has been fraudu- 
 lently disposed of ; but they ilo not 
 extend to such as has been previ- 
 ously transferred by the firm in 
 good faith Ibid. 
 
 3. Although one partner can not bind 
 his co-partner b)' deed, yet a deed 
 executed by one for himself and 
 partner, in the other's presence 
 and by his authority, is the deed 
 of both. — Modisell v. Lindley el al. 
 
 119 
 
 4. Assumpsit by partners for work 
 and labor. HekL that evidence of 
 the statements of one of the part- 
 ners, made after the dissolution of 
 the partnership, so far as they 
 tended to show a new contract de- 
 stroying the partnership claim, and 
 giving to each partner a separate 
 demand for his part of the debt. 
 was not admissible; but that the 
 statements of such partner, so far 
 as they showed a payment made to 
 himself, might be proved. — LeJ'i- 
 vour el al. v. Yandes et al 240 
 
 5. Payment of a debt to one partner 
 of a firm is good against the other 
 partners ; and a release by one 
 partner to a debtor of the firm is 
 obligatory on tlie others. — Yandes 
 el al.v. Lefuiour et al 371 
 
 6. Assumpsit in the name of A. and 
 B. against C. for work and labor 
 performed by the plaintifi's as part- 
 ners. The defendant offered to 
 prove admissions, made by one of 
 the plaintiffs after the partnership 
 was dissolved, tending to show that, 
 after the dissolution, the parties 
 had made a different contract re- 
 specting the payment for the work 
 than that under which the work 
 iiad been done. Held, that the evi- 
 dence was inadmissilile Ibid. 
 
 7. The admission of one partner as 
 to the existence of a debt against 
 the firm, made subsequently to the 
 dissolution of the partnership, is 
 not binding on the other jiarlners. 
 
 Ibid. 
 S. An acknowledgment of a debt, 
 made l)V one partnei' after a disso- 
 lution of the [)artnersiu[), is not 
 surticient to take a case out of the 
 
 statute of limitations as to the other 
 partners Ibid. 
 
 PAWN. 
 
 See Pledge. 
 
 PAYMENT. 
 
 See Bond, 12 , Judgment, 6, 7; Part- 
 
 NER.SHIP, 4-6. 
 
 PERJURY. 
 
 1. In an indictment for perjury, the 
 oath said to be false was charged 
 to have been administered in the 
 Circuit Court ijy S. C. as deputy 
 clerk. Held, that no proof of the 
 appointment of the deputy clerk 
 was necessary ; that in administer- 
 ing the oath, S. C. acted under the 
 superintendence of the Court ; and 
 that the oath was as obligatory as 
 if it had been administered by one 
 of tli« judges. — Server v. The Slate. 
 
 35 
 
 2. An indictment for perjury must 
 show conclusively that the testi- 
 mony given by th^ defendant, and 
 charged to be false, was material 
 to the issue on the trial of which 
 he was sworn. — Weathers v. The 
 State 278 
 
 3. If a witness, with an intention to 
 deceive the jury, swear so as to 
 make an impression on their minds 
 that a fact material in the cause is 
 different from what it really is, and 
 from what he knows it to be, he is 
 guilty of perjury. — Scott v. Mort- 
 sinffcr 454 
 
 PLE.XDING 
 See Abatemext, 1,2; Attachment, 
 1; Bastardv. 2; Bond, 2, 7, 10, 
 11 ; Condition Precedent, 1 ; Con- 
 stable, 2: Corporation, 1: De- 
 murrer ; Executors and Ad.min- 
 ISTRAT0R.S, 2, 3, 5, l). 11, 12, 14, 16, 
 17; Forcible Entry and Detain- 
 er, 1; Former Recovery: In- 
 solvent Laws, Effect of Dis- 
 charges Under, 1, 2, 6; Judc;- 
 MENT, 1, 4, 5: Jurisdiction, 5; 
 Justice of the Peace, 1, 5-7; 
 Lost Bond ; Oyer ; P r o f e r t ; 
 Promissory Notes, 4 ; Recogni- 
 zance. 3 ; Seat of Justice, 2 ; 
 Slander, 3, 5; Statute. 2, Ten- 
 der, 2; Trespas.-. 1, 3-5: Vari- 
 ance; Vendor and Purchaser, 
 3, lU. 17, IS, 21.; Waiver. 
 
 (002)
 
 INDEX. 
 
 507-508 
 
 1. A special plea of non est factum, 
 alleging a material alteration of 
 the bond without the obligor's con- 
 sent, may, if not sworn to, be re- 
 jected on motion; but it caa not 
 be treated as a nullitv. — Rileij et al. 
 \-.Harkne,i .' 34 
 
 2. The plaintiff can not demur and 
 reply to the same plea Ibid. 
 
 3. A. assigned to B. a note against 
 C. in payment of a judgment which 
 B. had obtained against A. ; and 
 it was agreed that if the money 
 could not be obtained by due course 
 of law from C, A. would pay "to B 
 the amount due on the judgment. 
 Held, that, in a suit by B. against 
 A., after a failure to recover the 
 money from C, an averment in the 
 declaration that the plaintiff' had, 
 without delay, prosecutetl C. to in- 
 solvency without obtaining the 
 money, is insufficient; that due 
 diligence, in the prosecution of a 
 suit, is a matter of law arising out 
 of the facts of the case, which facts 
 must be set out that the Court may 
 determine whether they show due 
 diligence or not; that the time 
 when and the place where suit was 
 instituted, the time judgment was 
 obtained, the nature of the execu- 
 tion, the time it issued, and the 
 sheriff's return, should be set forth, 
 — Harvinyton v. Wtthewic 37 
 
 4. Covenant on an obligation for the 
 payment of money. Plea of pay- 
 ment and a release, which release 
 the plaintiff" had since destroyed. 
 Replication, that the plaintiff had 
 not destroyed the release. Held, 
 that the plaintiff, not having speci- 
 ally demurred to the plea for du- 
 plicity, as he might have done, 
 was bound to answer all its parts ; 
 and that the replication, therefore, 
 not denying the payment, was in- 
 sufficient. -Reno et (d. V. HollowelL.^S 
 
 5. If the county and circuit, in which 
 an action on the judgment of a 
 Court in another state is brought, 
 be named in the margin of the dec- 
 laration, no objection can be made 
 for want of a venue. — Capp v. Gil- 
 vian ^5 
 
 6. The act authorizing a defendant, 
 in actions of assumpsit, to plead a 
 warrant or failure of consideration 
 special! V, is cumulative, and does 
 not take away the party's right, ex- 
 isting l.)efore the act, to avail him- 
 
 self of such a defence under the 
 general issue. — Jamison v. Buckner. 
 
 '. A declaration stated that .\.. P. 
 and C, county commissioners ol 
 the county of Scott, complained of 
 the administrator of D. for money 
 had and received by the intestate 
 to the use of the plaintiffs, and 
 which he had not paid to the 
 plaintiffs. Held, that the words 
 "county commissioners of the coun- 
 ty of Scott," were only a dem-ipti" 
 per.ionurum. — White v. Runkin et ul. 
 
 78 
 
 8. If two replications be filed to one 
 plea, the defendant may deai\ir 
 specially for the duplicity ; but a 
 rejoinder to the replications cures 
 the objection. — Kino v. Anthony. 
 
 131 
 
 9. Whatever comes under a vide- 
 licet, if inconsistent with the pre- 
 cedent matter, may be rejected as 
 surplusage. — Blackwellv. The Board 
 of Justices of Laurence County.. .\i'^ 
 
 10. It is sufficient for a plea of justi- 
 fication in trespass, to justify tliat 
 which is the gist of the action, 
 matters merely in aggravation need 
 not l)e answered.- Lei t;//t)J(/ v. Leuitil 
 et al ltJ3 
 
 11. A plea of justification in trespass, 
 can not be objected to for the want 
 of a venue; the place being laid in 
 the declaration, and tlie trespass 
 justified being alleged to be tlie 
 same with that complained of../6;'c/. 
 
 12. If A. and B. justify in tresp is-;, 
 as sheriff' and deputy sheriff, under 
 an alias list of militia fines issued 
 by a judge advocate, the })le i nuHl 
 show which of the defendants is 
 the sheriff', and which the depulv, 
 
 Jbiil. 
 
 13. If there be two pleas, each to tlie 
 whole cause of action, and one on 
 demurrer be adjudged good, the 
 plaintiff can proceed no further. — 
 Cutler w. Cox -.17^ 
 
 14. If, to assumpsit on a promissory 
 note, the defendant plead a failure 
 of consideration on account of the 
 non-delivery of goods, the plaintiff 
 may reply generally that the con- 
 sideration has not failed. The note 
 is prima facie evidence of a consid- 
 eration ; and the want or failure 
 of consideration, in such case, must 
 be jdeaded and {)roved. — Mitchell v. 
 Sheldon ef al 1S5 
 
 0)03)
 
 508 509 
 
 INDEX. 
 
 15. It is unnecessary, in the declara- 
 tion on a sheriff's bond, to aver a 
 non-payment of the penaltj'. Aliter, 
 in the case of penal tjonds payable 
 bv one private person lo another. 
 ^The State y. JWClane etal 192 
 
 16. If a plea, in bar of a writ of error, 
 answer only a part of the errors as- 
 signed, it is bad on demurrer. — 
 MiUnr'v. Farrar 219 
 
 17. A release of errors executed for 
 the purpose of procuring an injunc- 
 tion, may be pleaded in bar of a 
 writ of error, although the injunc- 
 tion had bten refused and tlie bill 
 dismissed Ibid. 
 
 18. If a plea of accord and satisfac- 
 tion by the delivery to the plain- 
 tifi' of certain property, does not 
 state a time when the delivery was 
 made, it is bad on special demur- 
 rer. — Pence et al. v. Smack 315 
 
 19. A general plea to an action on a 
 bond, thai the bond had been ob- 
 tained by fraud and covin, without 
 setting out the particulars of the 
 fraud, is good Ibid. 
 
 20. Debt against the administrator of 
 A. on a joint and several bond ex- 
 ecuted by A. and B. to the jilain- 
 tift', conditioned for the perform- 
 ance of covenants. Plea, that the 
 intestate was only a surety ; that 
 the plaintiff had agreed with B., 
 witbout the defendant's knowledge, 
 to lake a judgment by confession 
 against B. for 275 dollars, in a suit 
 on the l)ond then pending against 
 him, it l)eing a less sum than the 
 jilaintiff pretended lie could recov- 
 er : and to take a judgment against 
 the present defendant for the costs 
 of an action then pending against 
 him on the bond , that judgments 
 had been rendered conformably to 
 tliis agreement. Held, that this 
 plea was not double ; and that it 
 was a good bar to the action. — 
 Porter v. Brackenridye 385 
 
 21. .\ plea, to be objectionable for 
 duplicity, must cont un more than 
 one valid defence to the .suit ...Ibid. 
 
 22. Debt against A. on a penal bond 
 jjayable to the state. The condi- 
 tion of tlie bond was, that A. should 
 well and truly discharge the duties , 
 of collector of the state and county | 
 revenue of Owen county for the ! 
 year 1829, and pay over the same 
 as by law re(|uired. The declara- 
 tion, alter setting out the bond and | 
 
 condition, averred that A. had not 
 paid over the taxes assessed on the 
 county of Owen to the county treas- 
 urer, nor accounted for the same to 
 the said treasurer, in the manner 
 prescribed by law. Held, on spe- 
 cial demurrer, that the declaration 
 was insuflicient. — Evans el <il. v. The 
 
 State 387 
 
 23. A declaration in debt on an at- 
 tachment-bond, after setting out 
 the bond and condition, averred 
 that the attacliment bad been sued 
 out, brought to issue, tried, and 
 adjudged to be void, without cause, 
 tortious, and oppressive ; and that 
 the plaintiff had been much op- 
 pressed, and put to great trouble 
 and expense, in defending him- 
 self against said false, feigned, and 
 vexatious proceedings of the de- 
 fendant. //('/(/, on special demur- 
 rer, th;it the determination of the 
 attachment-suit, the damages su.s- 
 taincd, and the want of cause for 
 the attachment, were .set out with 
 sufficient certaint}'. — Morris el al. v. 
 Price 457 
 
 PLEDGE. 
 
 The absolute right of property and 
 the right of possession in a note, 
 which had been pledged for the 
 payment of a debt, become, on pay- 
 ment of the debt, vested in the 
 pledgor ; and if the note be after- 
 wards converted by the pledgee to 
 his own use, he is liable to the 
 pledgor in an action of trover. — El- 
 liott V. Armslrontj ] 98 
 
 PLENE ADMINISTRAVIT. 
 
 See Executors axd Adminlstra- 
 TORS, 11, 12, 16, 17, 28. 
 
 PRACTICE. 
 
 See Chancery, 8, 9, 24, 27, 29 ; De-. 
 murrer to evidence; evidence, 
 12, 13 ; Issue ; Joinder; Jury, 12 ; 
 Pleading, 1, 2, 13 ; Sheriff, 1 , 
 Waiver. 
 
 1. If a defence be filed, which is not 
 relevant to the cause, it may be 
 rejected on motion. — Evans el al. v. 
 Shoemaker 237 
 
 2. The.issues must be made u]) before 
 the jury are sworn, excejiting only 
 that a Similiter may be dispensed 
 with.— .S'((«/i V. Piuri/ 291 
 
 (604)
 
 INDEX. 
 
 509-510 
 
 3. An affidavit bv the plaintiff's at- 
 torney, that he had left the repli- 
 cation on the clerk's table with the 
 papers in the cause, and that ithad 
 afterwards come into the depo- 
 nent's possession by mistake, does 
 not show, with sufficient certainty, 
 that the replication had been prop- 
 erly filed Ibid. 
 
 4. The party on whom the affirma- 
 tive of the issue lies has a right to 
 open and conclude the cause. — 
 Kimble v. Adair 320 
 
 5. If, after the examination of a wit- 
 ness is closed, his re-examination 
 be F.sked for and refused, this Court 
 will presume such refusal to be 
 correct, unless the record show that 
 there was a good cause for the re- 
 examination. — Scott V. Morlsinqer. 
 
 "454 
 PRESUMPTION. 
 See Bond, 12; Error, (5-8; Prac- 
 tice, 5; Vendor and Purchaser, 
 23. 
 
 PRINCIPAL AND AGENT. 
 
 See Mistake; Parties, 1, 2; Sher- 
 iff, 2, 7. 
 
 1. If an agent execute an obligation 
 for his principal, not warranted by 
 the power, the principal being un- 
 apprised of the nature of the obli- 
 gation, will not be bound by it, 
 though he was in the room when 
 the obligation was executed, and 
 tliough his subsequent agent con- 
 ceived himself authorized to com- 
 ply with similar obligations so ex- 
 ecuted by the first agent.— il/brf!se« 
 V. Lindley et ul 119 
 
 2 S., resident in another state, for- 
 warded to M., in Indiana, who was 
 not an attorney at law, a note 
 against H. for "200 dollars, to be 
 collected. M. placed the note in 
 the hands of an attorney at law for 
 collection. The attorney collected 
 the money, and left the country 
 without paying it over to M. Held, 
 that S. could not, under the.se cir- 
 cumstances, sustain an action for 
 nionev had and received against 
 M. Held, also, that if M. could be 
 made liable for the money in any 
 form of action, it must be on one | 
 founded on his having acted fraud- j 
 ulently or imprudently in entru.st- j 
 ing the note to the attorney ; or on : 
 his having failed to use proper I 
 means to obtain, the money from | 
 
 (605) 
 
 the attornev after its collection. — 
 
 Madle v. Steele 344 
 
 . A. deposited with B. a note for the 
 payment of money again.st C, to be 
 accounted for by B. to A. when 
 collected. B. afterwards gave up 
 this note to the sheriff to be sold 
 on a fee-bill against A., B. and D., 
 in a case in which X. was the prin- 
 cipal and B. and D. were his sure- 
 ties. The sherifi', accordingly, 
 levied upon and sold the note to 
 satisfy the fee-bill. Held, that B., 
 for tliis breach of duty, was liable 
 to A. in an action on the case. — 
 
 M ' Clelland v. Hubbard 36 1 
 
 [. A. agreed in writing to sell to B. 
 a tract of land for a certain sum. 
 Payment to be made by B.'s deliv- 
 ering to A., or to his agent, C, a 
 boat and cargo of produce by the 
 first rise of the Ohio river, suffi- 
 cient to take boats over certain 
 rapids in the river. If the boat, 
 &c., could not be prepared by the 
 time specified, the payment was to 
 be subsequently made in a differ- 
 ent manner. The conveyance to 
 be made when the land should be 
 paid for. B. took pos.session of the 
 land ; and delivered the boat and 
 cargo to C, as A.'s agent, but not 
 till several weeks after the first rise 
 of the river, sufficient for the pur- 
 pose above-mentioned, C, took the 
 property 10 N. Orleans; but what 
 becameof the proceeds did not ap- 
 pear. 
 Held, that C, as the special agent of 
 A, to receive the property, had no 
 authority to receive it after the 
 first riseof the river, &c,» and that 
 the subsequent delivery of the same 
 to him did not entitle B. to a con- 
 veyance of the land from \.-Long- 
 tvarth V, Conwell 469 
 
 5. Held, also, that supposing C. to 
 have been the general agent of A., 
 still the delivery, under the cir- 
 cumstances of the case, of the boat 
 and cargo to C, after the time 
 specified in the contract, was not 
 bind ing on A Joid. 
 
 6. It is a general rule that the princi- 
 pal is bound by the acts of his gener- 
 al agent, though the agent exceed 
 his private instructions. But the 
 rule does not apply to cases where 
 the person dealing with the agent is 
 apprised of the existence of the 
 private instructions Ibid.
 
 510 
 
 INDEX. 
 
 PRINCIPAL AND SURETY. 
 
 See Surety. 
 
 PROBATE COURT. 
 
 See Executors and Administra- 
 tors, 15, 18. 
 
 PRO CONFESSO. 
 See Chancery, 10 15, 16. 
 
 PROFERT. 
 
 See Executors and Administra- 
 tors, 2 ; Oyer, 2. 
 
 In an action on a judgment, profert 
 ot record is unnecessary ; the jvoul 
 paiel per recordum is sufficient even 
 on special demurrer. — Cupp v. Gil- 
 man 45 
 
 PROMISSORY NOTES. 
 
 See Bond, 1, 4, 5, 12; Corporation, 
 2 ; Execution, 4 ; Pleading, 3, 
 14, 19. 
 
 1. A., having a promissory note 
 against B. wliich was due, promised 
 him by parol and without consid- 
 eration, that he would not urge the 
 payment until a certain future 
 time. Held, that the promise was 
 not obligatory. — Bern/ v. Bates.AIS 
 
 2. In the sale of personal property, 
 not in market overt, the general 
 rule is, that, though the purchase 
 be bona fide and lor value, the pur- 
 chaser receives rto better title th;\n 
 that of which the .seller was pos- 
 sessed. But bills of exchange and 
 promissory notes are exceptions to 
 this rule ; when they are originally 
 payable to bearer, or when, in the 
 first instance, they are payable to 
 order and afterwards by a blank 
 indorsement become payable to 
 bearer, they pass by delivery ; 
 and the purchaser who uses due 
 caution, pays a valuable consid- 
 eration, and takes them in the com- 
 mon course of business, has a good 
 title against all the world, whether 
 tlie seller had any title or not. A 
 note p;iyable to order, however, can 
 not ])ass without an indorsement 
 either by the jiayee, or by some 
 person in the payee's name and by 
 his authoritv. — Elliott v. Armstrong. 
 
 198 
 
 3. The assignee of a promissory note, 
 assigned l)efore it was due, delayed 
 thirty days after it became due be- 
 
 fore he sued the maker. Held, that 
 the indorser was not liable, in such 
 a case, for the maker's default, un- 
 less the indorsee could show that 
 an earlier proceeding was imprac- 
 ticable, or would have lieen una- 
 vailing. — Merrivuin v. Maple ..350 
 4. Assumpsit by the assignee of a 
 promissory note, pavable on the 
 30th of October, 1829, against the 
 maker. Plea, that the payee and 
 another, on the day the note was 
 given, executed to the maker their 
 obligation for the delivery of a cer- 
 tain quantity of bricks on the 1st 
 of May, 1829; that the note was 
 given in consideration of the de- 
 livery of the bricks ; that the liricks 
 had not been delivered, and the 
 consideration of the note had there- 
 fore failed. i7e/f/, on demurrer, that 
 t-lie plea was a good bar to the ac- 
 tion . — Bowles v. Nevby 3(i4 
 
 5. The indorser of a note, under our 
 statute, warrants two things : 1st, 
 that the note is valid and the maker 
 liable to pay it ; 2d, that the maker 
 of the note is solvent and able to 
 pay it. — Hoivellv. Wilsov 418 
 
 6. If the indorsee sue the maker, and 
 fail on the ground that the note 
 had been obtained without consid- 
 eration, the indorser is not bound 
 b}' this judgment against the vali- 
 dity of the note, if notice was not 
 given him of the pendency of the 
 suit. But the indorser may show, 
 in bar of an action against him by 
 the indorsee under those circum- 
 stances, that the consideration of 
 the note was a good one Ibid. 
 
 7. The indorsee of a note, obtained 
 from the maker without considera- 
 tion, has no right, as soon as he 
 discovers the imposition, to sue the 
 indorser for having assigned him 
 a note which the maker is not 
 liable to pay Ibid 
 
 PURCHASER. 
 
 See Vendor and Purchaser. 
 
 Q. 
 
 QUIATIMET. 
 
 See Chancery 3. 
 
 R. 
 RECEIPT. 
 
 See Evidence, 7. 
 
 (606)
 
 INDEX. 
 
 510-511 
 
 EECEIVING STOLEN GOODS. 
 
 Indictment for receiving stolen jroods 
 knowing tlieni to be stolen. Held, 
 that the time and place, when and 
 wliere the goods were stolen, need 
 not be stated in the indictment, nor 
 proved at the trial. — Holfordv. The 
 Stale " 103 
 
 RECOGNIZANCE. 
 
 1. The surety in a recognizance be- 
 fore a justice of the peace, for the 
 principal's appearance at the Cir- 
 cuit Court to answer a criminal 
 charge, can not discharge himself 
 by a surrender of his principal to 
 the justice. — Slegara v. The State. 
 
 ■ 104 
 
 2. The surrender in such cases, ac- 
 companied by a certified copy of 
 the recognizance, may be made to 
 the sheriff Ibid. 
 
 3. A., B. and C. entered into a recog- 
 nizance for A.'s appearance on the 
 first day of the term of the next 
 Circuit Court to answer a charge of j 
 larceny. On the first day of the • 
 term A. failed to appear. He also 
 made default on the second day, 
 when the recognizance was de- 
 clared forfeited, and a scire facias 
 issued thereon returnable to the 
 next term. Plea to the scire facias, 
 tiiat no pre.sentment or indictment 
 had been found against A., thougli, 
 since the date of the recognizance, 
 two grand juries had been impan- 
 eled. Held, on demurrer, that the 
 plea was insufficient. — The Slate v. 
 Cooper et at , 226 
 
 4. In all cases in which the state 
 takes an obligation from an indi- 
 vidual for the performance of any 
 duty, it should be by recognizance, 
 unless the law otherwise direct. — 
 Dickerson v. Gray 230 
 
 RECORD. 
 See Jury, 3, 13; Oyer, 1, 2; Pro- 
 fert; Vendor and Purch.aser, 
 30. 
 
 1. Neither the capias ad responden- 
 dum, nor the sheriflf"'s return on it, 
 can be noticed by this Court, un- 
 less it be made a part of the rec- 
 ord in some wav known to the law, 
 —Hays V. M' Kee 11 
 
 2. Neither an affidavit for a contin- 
 uance, nor any objection of a party 
 to the ordering on a cause iov trial. 
 
 is any part of the record unless 
 made so by a bill of exceptions. — 
 Wilson V. Coles 402 
 
 RECORDS, EL'RNED. 
 In order to have a judgment re-en- 
 tered, under the statute of 1827 rel- 
 ative to the burned records of 
 Dearborn county, the notice to the 
 defendant, which answers the pur- 
 poses both of a writ and declara- 
 tion, must state the term at which 
 the judgment was originally ren- 
 dered. — Weaver v. Bryan 172 
 
 RELATION. 
 
 See Vendor and Purchaser, 16. 
 
 RELATOR. 
 See Executors and Administra- 
 tors, 9. 
 
 RELEASE. 
 
 See Partnership, 5 ; Pleading, 4, 
 17; Vendor and Purchaser, 14. 
 
 An agreement under seal not to sue 
 for a limited time can not be plead- 
 ed in bar as a release : the defend- 
 ant must resort to his action on the 
 agreement. — Berry v. Bales 118 
 
 RENT. 
 
 See Distress; Execution, 2; Re- 
 plevin, 4, 5, 7, 9. 
 
 REPLEVIN. 
 
 See Costs, 1 ; Distress ; Judgment, 
 6 ; Right of Property, Trial of. 
 
 1. Replevin lies by a person not hav- 
 ing the actual possession of the 
 goods when taken, provided he 
 have at tiie time the general prop- 
 erty and the right of immediate 
 pos.session. — Chinn v. FLiissell 172 
 
 2. Any person, except the execution- 
 defendant, may have replevin, un- 
 der our stattite, for his goods taken 
 in execu t ion Ibid. 
 
 3. A joint execution may issue against 
 a judgment-debtor and his replevin- 
 surety. —.irCo.y et al. V. Elder... IH3 
 
 4. If an action of replevin be brought 
 for taking several articles, and, on 
 an issue as to the plaintiff's prop- 
 erty in them, he only prove him- 
 self entitled to a part, the defend- 
 ant has a right to a return of the 
 others and to damages for the tak- 
 ing of them. In such case each 
 
 (607)
 
 511-512 
 
 IKDEX. 
 
 party succeeds, and each is entitled 
 to his costs. — Wright v. Mathews et 
 al 187 
 
 5. An avowry for rent due need not 
 show that a warrant, founded on 
 oath, liad been taken out before 
 making the distress ; nor that the 
 goods distrained belonged to the 
 tenant ; nor need it set out the par- 
 ticuhvrs of the landlord's title../6(V/. 
 
 6. A. to whom B. was indebted, levied 
 an attachment on certain goods as 
 B.'s property. C, the owner of the 
 goods, brought an action of replevin 
 against A. and recovered. — Louis- 
 ville and Portland Canal Companij v. 
 Holborn 267 
 
 7. In an action of replevin by L. 
 against W., the defendant avowed 
 the taking of the goods as a dis- 
 tress for rent, due to him from the 
 plaintiff. To this avowry, the 
 plaintiff pleaded non tenuil and 
 riens in arrear. Issues were joined 
 upon these pleas. There was a ver- 
 dict for the defendant on both the 
 issues ; the jury finding the amount 
 of rent in arrear, but not the value 
 of the goods distrained. The Coui't 
 held, that the commor.-law judg- 
 ment for a return of the goods to 
 the defendant, and for his costs of 
 suit, might be rendered on this ver- 
 dict ; but that there could be no 
 judgment in his favor for the ar- 
 rears of reni.—Larkinv.Wilburn. 
 
 343 
 
 8. If the plaintiff, in an action of re- 
 plevin, be non-suited, he is not 
 thereby barred from bringing an- 
 other action of replevin ; the merits 
 of the cause not having been tried. 
 This is the common law; and the 
 statute in England of Ed. I., pro- 
 hibiting a second replevin after a 
 nonsuit, is local to that kingdom 
 and not in force here. — Dag'jeti v. 
 Robins 415 
 
 9. The action of replevin is not lim- 
 ited to ca.ses of distress; but lies 
 in all cases of a tortious and un- 
 lawful taking and detention of 
 goods and chattels Ibid. 
 
 10. Writs of replevin, in this state, 
 are issued out of the Circuit Court 
 and returned thither as writs in 
 other cases; and the action of re- 
 l)levin is proceeded in and tried as 
 other actions are Ibid. 
 
 REPLEVIN-BOND. 
 See Lien, 1. 
 
 RESULTING-TRUST. 
 
 See Trust and Trustee, 1-3, 7, 8, 
 
 10, 11. 
 
 RETRAXIT. 
 
 See Nolle Prosequi. 
 An attorney at law has no authority 
 to enter a retraxit; that being a 
 perpetual bar, — Lambert v. Sand- 
 ford 137 
 
 REVIVOR, BILL OF. 
 See Chancery, 25, 26. 
 
 RIGHT OF PROPERTY, TRIAL 
 OF. 
 
 Goods found in possession of A., an 
 execution-defendant, were levied 
 on by the sheriff. B. claimed the 
 goods as his, and a jury, summoned 
 to try the right of property, found 
 that they belongetl to A. Held, in 
 replevin by B. against the sheriff', 
 that the finding of the jury was not 
 conclusive against B. — Chinn v. 
 Russell "; 172 
 
 S 
 
 SALE. 
 
 See Vendor and Purchaser. 
 
 SALE FOR TAXES. 
 See Vendor and Purchaser, 31, 32. 
 
 SCIRE PWCIAS. 
 See Bastardy. 1. 2; Judgment, 1. 
 
 SCROLL. 
 
 See Seal. 
 
 SEAL. 
 
 An ink seal, commonly called a scroll,- 
 
 has the same effect, by statute, as 
 
 if it were made witli wafer or wax, 
 
 — Vanblaricum elal.x. Yen..: 322 
 
 SE A T.OF JUSTICE. 
 
 1. A statute authorized the re-loca- 
 tion of a seat of justice in a county, 
 and gave to the owners of lots in 
 the old town, after the re-location, 
 on their comi)!ying with certain 
 conditions, a right to a conveyance 
 by the county agent of certain lots 
 
 (608)
 
 INDEX. 
 
 512-513 
 
 in the new town in excliange for 
 theirs in the old one. The county 
 accepted the statute, and the seat 
 of justice was removed. Held, that 
 the owner of a lot in the old town, 
 having performed the precedent 
 conditions prescribed by the sta- 
 tute, and demanded of the county 
 .agent a conveyance for the proper 
 lot in the new town, might, if the 
 title were refused, maintain an ac- 
 tion of assumpsit against the Board 
 of Justices for a breach of their 
 contract, implied from the county's 
 acceptance of the statute. — Bkick- 
 xcell V. The Board of Justices of Law- 
 rence County 143 
 
 2. Held, also, that if the important 
 facts, .showing the cause of action, 
 were correctly set out, the declara- 
 tion could not be objected to on 
 general demurrer on account of its 
 improper conclusion, that the plain- 
 tiff ought to recover the value of 
 the lot in the new town Ibid. 
 
 3. Held, also, that the value of the 
 lot in the old town, at a reasonable 
 time before the passage of the stat- 
 ute for the re-location, was the real 
 consideration that passed from the 
 plaintiff for the lot in the new 
 town; which consideration, with 
 interest from the time the lot in the 
 old town was relinquished to the 
 county, was. in this case, the meas- 
 ure of damages Ibid. 
 
 4. A seat of justice may be removed 
 by statute, on such terms as the 
 legislature deems reasonable; and 
 the county, having accepted and 
 acted on the statute, is bound to 
 comply with the terms imposed on 
 it by the statute Ibid. 
 
 SECURITY FOK COSTS. 
 See Bond, 10, 11. 
 
 SEDUCTION. 
 
 See Marriage. 
 
 SEISIX. 
 See Damages, 2 ; Vendor and Pur- 
 chaser, 20. 
 
 SET-OFF. 
 1, A debt due by A. and B. to C. can 
 not be set off," either at law or in 
 equity, against a debt due by C. to 
 A. alone. — Elder v. Lasswellet al. 
 
 349 
 
 Vol. II.— 39 
 
 2. There is no difference, on the sub- 
 ject of set-oft", between Courts of 
 law and equity ; the rule is the 
 same in l)otii Courts ...Ibid. 
 
 SHERIFF. 
 
 See Bond, 3, 0,7 ; Escape; Evidence, 
 9 ; Execution; Pleading, 12, 15 ; 
 Right of Property, Trial of. 
 
 1. The process of the Supreme Court 
 is, by statute, directed to the sher- 
 iff' of that Court, who receives the 
 same and forwards it, with his man- 
 date, to the sheriff' of the county in 
 which it is to be executed. The 
 sheriff of the proper county makes 
 his return to the sheriff of the Su- 
 preme Court, and the latter returns 
 it to that Court. — M'Gruder v. Rus- 
 sell ; 18 
 
 The general doctrine is, that a 
 sheriff is liable for the acts of his 
 deputy. But as the authority of 
 the sheriffs of the several counties 
 to execute the process of the Su- 
 preme Court is neither conferred 
 by the sheriff of that Court, nor 
 subject to be revoked or abridged 
 by him, he is not liable for their 
 cond net Ibid. 
 
 3. In an action against a sheriff for 
 a false return, the execution is ad- 
 mi.ssible in evidence, though it do 
 not specify the day on which it is 
 returnable. — Bosky v. Farquar et al. 
 
 61 
 
 4. The sheriff's return to a fieri facias 
 was, that he had not levied be- 
 cause the plaintiff' would not give 
 him an indemnity. Held, that this 
 return was unknown to the law, 
 and that the cause must stand as if 
 no return were made Ibid. 
 
 5. Even if such an indemnity could 
 be required in any case, it siiould 
 be demanded as soon as the circum- 
 stances authorizing the demand 
 were known to exist Ibid. 
 
 If the sheriff, in consequence of 
 vague rumors as to whether certain 
 goods are the debtor's or not, re- 
 turn nulla bona without having the 
 right of property tried by a jury, 
 he will be liable'for a false return, 
 '.n proof that the goods were sub- 
 ject to the execution Ibid. 
 
 If it appear that a person has acted 
 generally as a deputy sheriff, with 
 the sheriff's knowledge and con- 
 sent, the sheriff' is liable for the
 
 513 
 
 INDEX. 
 
 official acts of such person, though 
 he may not have given him any 
 
 express au thori ty Ibid. 
 
 8. If a sheriff" take and sell the prop- 
 erty of A. on an execution against 
 B. he is liable to the owner, in 
 trespass or trover, without demand. 
 — Jamison v. Hendrich 94 
 
 SHERIFF'S SALE. 
 See Execution; Fraudulent Con- 
 veyance, 2, 4 ; Fraudulent Judg- 
 ment; Vendor and Purchaser, 
 1, 2, 4-8, 15, 22, 23, 25, 28, 29, 33, 
 34. 
 
 SIMILITER. 
 
 See Practice, 2. 
 
 The addition of the similiter is only 
 
 a matter of form, and the want of 
 
 it is aided by a verdict. — Hays v. 
 
 M'Kee 11 
 
 SLANDER. 
 See Malicious Prosecution, 4. 
 
 1. In a prosecution before a justice 
 of the peace for an assault and bat- 
 tery under the statute of 1818, the 
 defendant was found guilty by the 
 jury and fined three dollars. An 
 action of slander was afterwards 
 brought for words charging the 
 plaintiff' with having sworn false 
 on that trial ; and the words were 
 objected to as not being actionable, 
 on the ground that the justice had 
 no jurisdiction. Held, that though 
 the statute were deemed unconsti- 
 tutional so far as it gave the jus- 
 tice authority to inflict a fine ex- 
 ceeding three dollars, yet when, as 
 in this case, tlie fine inflicted did 
 not exceed that sum, the objection 
 was untenable. — Clark v. Ellis 8 
 
 2. Slander for charging a man with 
 illicit intercourse with his wife's 
 sister. Held, that the words did 
 not contain a charge of incest, but 
 only of fornication or adultery. 
 Held, also, that as, at the time of 
 speaking the words, neither forni- 
 cation nor adultery was an indict- 
 able offence, the words were not ac- 
 tionable. — JDukesv. Clark 20 
 
 3. Case by A. against B. for slander- 
 ous words. Plea that the defend- 
 ant had heard from C. the charges 
 mentioned in the declaration, and 
 that at the time the defendant 
 spoke the words, he stated that C. 
 had teld him so. Replication, that 
 
 the defendant had spoken and pub- 
 lished the words falsely and mali- 
 ciously with a knowledge that they 
 were false, and with the intent al- 
 leged in the declaration. Held, on 
 special demurrer, that the replica- 
 tion was good. — Crane el ux. v. Doug- 
 
 lass 
 
 .195 
 
 4. An action of slander was brought 
 by B. against M., for words charg- 
 ing the plaintiff' with stealing, and 
 for words charging him and his 
 family witli murder. The defend- 
 ant pleaded not guilty. Held, that 
 words charging the " B. family" 
 witli stealing, or with murder, 
 might be proved by the plaintiff to 
 show malice ; but that no slander- 
 ous words spoken of the plaintiff' 's 
 wife alone were admissible as evi- 
 dence in this action. — M ' Glimmery 
 v. Brush 226 
 
 5. A declaration in slander charged 
 the defendant with having said that 
 the plaintiflT had sworn false on a 
 certain trial before a justice of the 
 peace; but there was no averment 
 that the testimony alleged to be 
 false was material Held, that the 
 declaration could not be objected 
 to, after verdict, for the want of 
 that averment. — Wilson v. Harding. 
 
 241 
 
 6. A plaintiff in slander, having first 
 proved that the defendant had spo- 
 ken to third persons the words laid 
 in the declaration, may prove, in 
 support of the declaration, that the 
 defendant had spoken the same 
 words in answer to the plaintiff's 
 interrogatories. — Gordmi v. Speticer. 
 
 286 
 SPECIFIC PERFORMANCE. 
 
 1. A bill for a specific performance of 
 a contract is addressed to the dis- 
 cretion of the Court; and it should 
 always show that the complainant 
 had done all which could be equi- 
 tably required of him. — Dougherty 
 V. Humpston 273 
 
 2. When a conveyance is decreed to 
 be executed in such a case, the 
 usual form is, to require the person 
 who has the legal title to execute 
 the conveyance, if he is of legal dis- 
 cretion and within the jurisdiction 
 of the Court Ibid. 
 
 3. A. having obtained a judgment 
 against a county, purchase'd under 
 an execution on liie judgment, a 
 number of town lots belonging to 
 
 (^01
 
 INDEX. 
 
 513-514 
 
 the county. Afterwards, at a pub- 
 lic sale of these lots by the county, 
 B. bought one of them for a small 
 sum with notice of the previous 
 sale, paid the purchase-money, took 
 a receipt for tlie same, and entered 
 into possession. A. died, and the 
 county made a compromise with 
 his heirs, who released their inter- 
 est in the said lots to the county, 
 on receiving back the pui'chase- 
 money paid by A. ; the purchasers 
 at the said public sale, B. among 
 the rest, agreeing by parol to release 
 tlieir interest in the lots to the 
 county on being re-paid their pur- 
 chase-money. The county tender- 
 ed to B. his purchase-money for 
 the lot he had bought, which he 
 refused to accept ; and he refused 
 also to execute the release. C, af- 
 terwards, with B.'s knowledge, and 
 without any objection by B., pur- 
 chased the last-named lot of the 
 county, and received a deed from 
 the county for the same. A bill in 
 chancery, filed by B. against the 
 county to obtain a title for the lot 
 thus bought by C. was dismissed for 
 want of equity.-</a(/Mes v. The Board 
 of Commissioners of Vigo Comity.AOS 
 4. Upon an application to a Court of 
 equity, for a specific execution of 
 a contract for the sale of land, the 
 Court must be satisfied that the 
 claim is reasonable and just, and 
 the contract equal in all its parts, 
 and founded on an adequate con- 
 sideration. If any of these points 
 he not established by the com- 
 plaint, he will be left to his remedy 
 at law. — Modisett et al. v. Johnson et 
 id 431 
 
 SPIRITUOUS LIQUORS, RETAIL- 
 ING OF. 
 
 See Indictment, 3. 
 
 1. The fine, on a conviction of retail- 
 ing spirituous liquors without a 
 license, belongs to the county for 
 the purpose of education; but this 
 circumstance need not be stated in 
 the judgment. — Toumsend v. I' he 
 Slate 151 
 
 2. A license, to retail spirituous liq- 
 uors for three months was granted 
 by the board of county justices. The 
 license, as appeared on its face, 
 had been granted on the }>ayment 
 of fifty cents. Held, that, under the 
 statute, no license to keep a tav- 
 
 ern or to retail spirituous liquors, 
 could be granted on the payment 
 of a less sum than five dollars ; and 
 that, therefore, the license in this 
 case was, prima facie, absolutely 
 void Ibid. 
 
 STATE. 
 See Bastardy, 1,3; Costs, 3 
 
 STATUTE. 
 
 See Decree, 2, 3 ; Frauds, Statute 
 OF ; Judgment, 1 ; Limitations, 
 Statute of ; Seat of Justice. 
 
 1. A statute may be unconstitutional 
 as to one part of it, and valid as to 
 the residue. — Clark v. Ellis 8 
 
 2. The statutes of other states are not 
 noticed by our Courts, unless they 
 he pleaded and proved. — Elliott et 
 ul. v. Ray 31 
 
 3. If a statute be repealed, and the. 
 repealing act itself be afterwards 
 repealed, the original act is reviv- 
 ed. — Due d. Wayman v. Naylor-..S2 
 
 4. The act of 1827, giving the Su- 
 preme Court jurisdiction in certain 
 cases decided by the Circuit Court 
 on appeal from the judgment of a 
 ju.stice of the peace, is prospective 
 only, and does not apply to cases 
 determined by a justice before the 
 taking effect of the act. — Maguire 
 V. Noivland ;76 
 
 5. Statutes enacted at the same session 
 of the legislature are to be taken in 
 pari materai, and should receive a 
 construction which will give effect 
 to each if possible. But if each of 
 them can not have the same entire 
 effect when taken in connection 
 with the others that it would have 
 if taken singly, tiiey must be so con- 
 strued as to give effect to what 
 appears to have been the main in- 
 tention of the legislature. — TAe 
 State \. RucUey 249 
 
 SUBSCRIBING WITNESS. 
 
 See Witness, 1, 2, 4, 
 
 SUGGESTION OF BREACHES. 
 
 See Damages, 4, 7 ; Justice of the 
 Peace. 
 
 suprejMe court. 
 
 See Ekkor; Escape, 1, 2, Sheriff, 
 1,2. 
 
 (Gil)
 
 514-515 
 
 INDEX. 
 
 SURETY. 
 
 See Bond. 7, 8, 10, 11 ; Evidence, 3, 
 9 ; Executors and Administra- 
 tors, 1,6-9; Justice of the Peace, 
 3 ; Recognizance, 1-3 ; Replevin, 
 3. 
 
 1. The single fact that the creditor 
 has taken a judgment by confes- 
 sion from the principal debtor, with 
 a stay of execution for six months, 
 can not be pleaded by the surety 
 in bar of an action against him by 
 the creditor. The ])lea in such 
 case, to be valid, must also show 
 that the creditor could, by the or- 
 dinary proceedings at law, have 
 collected the money sooner from 
 the principal debtor than by the 
 course which he had pursued ; and 
 that the time was given to the 
 principal without the surety's con- 
 sent. — Barkery. M'Clure 14 
 
 2. In a suit against the administra- 
 trix of A. on a bond in which he 
 was surety for B. as sheriff', a judg- 
 ment previously obtained against 
 B. on the same bond is inadmissi- 
 ble as evidence for the plaintifT. — 
 The Governor \. Shelby ._ 26 
 
 3. If the administratrix, being sued 
 on the bond, had given notice of 
 the pendency of the suit to B. and 
 there had been judgment against 
 her, that judgment would have 
 been conclusive against B. in a suit 
 against him by the administratrix. 
 
 ^ Ibid. 
 
 SURRENDER. 
 See Recognizance, 1, 2. 
 
 SWINDLING. 
 
 See Trespass, 5. 
 
 T 
 
 TAXES. 
 
 See Vendor and Purchaser, 31, 32. 
 
 TEN. \ NT. 
 See Landlord and Tenant. 
 
 TENDER. 
 1. A tender and refusal of the prop- 
 erty (or that which is equivalent) 
 at the time and ]>lace fixed by the 
 contract for its delivery, vests the 
 jiroperty in the creditor; and puts 
 an end to his right to sue upon the 
 contract. — Mitchell et al v. Merrill. 
 
 2. The plea of tender, in such a case, 
 need not state that the defendant 
 was afterwards ready, or that he 
 brings the property into Court. 
 
 rbid. 
 TITLE-BOND. 
 
 See Chancery, 3, 1 2 ; Company, Un- 
 incorporated ; C o V E n A N T, 7 : 
 Damages, 2; Disseisin, 1,4; Dow- 
 er, 2 ; Ejectment, 4 ; Mistake ; 
 Vendor and Purchaser, 3, 17- 
 20, 33, 34. 
 
 TRESPASS. 
 
 See Malicious Trespass ; Pleading, 
 
 10-12; Sheriff, 8. 
 
 1. To an action for false imprison- 
 ment against a justice of the peace 
 and a constable, the defendants 
 pleaded in justification that an af- 
 fidavit had been made before the 
 justice, charging the plainfift with 
 having violently assaulted, lieaten 
 and wounded the deponent, where- 
 fore the justice had issued his war- 
 rant, Ac. Held, that the plea was 
 not objectionalde, after a verdict 
 in favor of the defendants, tor not 
 showing that the assault and bat- 
 tery were charged U> have l)een nn- 
 Imrfully made. — Cooper v. Adams et 
 a/.'....'. 294 
 
 2. A person arrested on a justice's 
 Avarrant for a breach of the peace, 
 can not maintain an action of false 
 imprisonment against the justice 
 or constable, in consequence of a 
 mere informality in the warrant • 
 provided the justice have jurisdic- 
 tion Ibid. 
 
 3. If a judicial officer, whetlier pos- 
 sessed of a general or a special 
 jurisdiction, act erroneously or even 
 oppressively in the exercise of his 
 authority, an individual at whose 
 suit he acts is not answerable, as a 
 trespasser, for the error or miscon- 
 duct of the officer. But if a judi- 
 cial officer whose jurisdiction is 
 special and limited, transcend his 
 authority and act in a ca.se ot which 
 he has no cognizance, his proceed- 
 ings are coram von judice, and no 
 person can justify under ihem, — 
 Taylor \. Moffat/ 305 
 
 4. The defendant, in an action of 
 false imprisonment, justified under 
 a writ of attachment ordered, at 
 his instance, by a Circuit judge. 
 The writ was issued against the 
 
 (612)
 
 INDEX. 
 
 515-516 
 
 plaintiff, for a contempt in disobey- 
 ing a writ of injunction granted 
 by the judge. The injunction was 
 granted, and the writ of attach- 
 ment was ordered and issued, in 
 vacation. Held, that the defence 
 was insufficient; the judge having 
 no authority, in vacation, to order 
 
 the writ of attachment Ihid. 
 
 6. Trespass and false imprisonment. 
 Plea, that the plaintiff, by his false 
 representations respecting the cir- 
 cumstances of a third person, had 
 induced the defendant, then in Lou- 
 isiana, to sell there on a credit to 
 such tiiird person a boat laden with 
 corn; that the plaintiff and the 
 purchaser absconded without pay- 
 ing for the corn, and were fugitives 
 from justice ; that the defendant, 
 for these reasons, made oath before 
 a justice in this state, that the 
 plaintiff and the purchaser had 
 swindled him out of the price of 
 Ills corn ; that a warrant for swin- 
 dling was accordingly issued by 
 the justice against the parties com- 
 plained of, upon which the plain- 
 tiff was arrested, taken before the 
 justice, and by him coumiitted to 
 gaol, which is the same trespass, 
 &c. Held, on demurrer, that the 
 plea was insufficient. — Hall v. Rog- 
 ers 429 
 
 TRESPASS ON THE CASE. 
 See Vendor and Purchaser, 12. 
 
 1. A declaration contained two counts. 
 The 1st stated that the defendant, 
 on his unenclosed land in the co^uu- 
 ty, cut a tree so that it was nearly 
 ready to fall, and set it on fire ; and 
 that the tree afterwards fell upon 
 and killed the plaintiff's horse. 
 The 2d count stated, that the de- 
 fendant, knowing the plaintiff's 
 horse to be rinining at large in the 
 unenclosed lands of the county, and 
 maliciously contriving to injure 
 the plaintiff, unlawfully and negli- 
 gently cut a tree in the county and 
 set it on fire ; and that the tree af- 
 terwards, in consequence of the j 
 cutting and burning, fell upon and \ 
 killed the plaintiff 's horse. Held, \ 
 that the declaration contained no i 
 cause of action. — Durliam v. Mus- \ 
 selman 96 j 
 
 2. When an action on the case is ! 
 brought for fraud in the breach of i 
 a contract, the gi-t of the action is 
 
 (61 
 
 the fraud committed at the time of 
 the breach ; and if the plaintiff can 
 not maintain an action for the 
 fraud committed at that time, no 
 subsequent damages will enable 
 him to maintain it. — Cutler v. Cox. 
 
 178 
 TROVER. 
 
 See Pledge ; Sheriff, 8 ; Vendor 
 AND Purchaser, 8. 
 
 1. The plaintiff may recover, in tro- 
 ver,for the injury done. to his goods, 
 as well as for their value. — Jami- 
 son V. Hendricks 94 
 
 2. To support the action of trover, 
 the plaintiff must prove property 
 and the right of possession in him- 
 self, and a conversion by the de- 
 fendant. — Picquel V. 3I'Kay 465 
 
 3. If the defendant has a lien on the 
 goods for which trover is brought 
 against him, the action can not be 
 sustained, unlessa tenderhave been 
 made to the defendant of the 
 amount of the claim Ibid. 
 
 TRUST AND TRUSTEE. 
 
 See Parent and Child, 2. 
 
 1. A trust estate in real property, as 
 separate from the legal ownership, 
 may either be credited by an ex- 
 press declaration of the trust ; or 
 it may be raised upon certain facts 
 by implicatior of law. — Elliott v. 
 Armstrong 198 
 
 2. The .statue of frauds requires all 
 declarations of trust in land to be 
 proved by written testimony ; but 
 tho.se trusts which arise by the 
 mere operation of law, are except-, 
 ed out of the statute and may be 
 proved by parol evidence Ihid. 
 
 3. If A. purchase land with his own 
 money, and the deed be made to B., - 
 a trust results in favor of A., pro- 
 vided there be no circumstances in 
 the case to rebut this presumption 
 of the law Ibid. 
 
 4. To a bill in chancery by the gran- 
 tee of a cestui que trust against the 
 trustee to obtain the legal title, the 
 grantor need not be a party either 
 as complainant or defendant.. /6iV/ 
 
 5. The estate of a cestui que trust may 
 be sold and conveyed by him, as 
 well as any other estate Ibid. 
 
 6. The estate of a bare trustee is not 
 subject to be sold on an execution 
 against him Ibid. 
 
 7. A complainant in chancery may
 
 516 
 
 INDEX. 
 
 prove, by parol evidence, in order 
 to show a resulting trust, that the 
 purchase-money for real estate con- 
 veyed to another was paid by him- 
 self, though the deed state that the 
 money was paid by the grantee, and 
 the answer contain a denial of the 
 trust Ibid. 
 
 8. The trust, in real estate conveyed 
 to A., results in favor of B., in con- 
 sequence of his payment of the 
 purchase-money, is a kind of arbi- 
 trary implication raised, to stand 
 until some reasonable proof be 
 brought to the contrary ; and if 
 the money was paid for the express 
 purpose of vesting in A. both the 
 beneficial and legal interest, no 
 trust can result in favor of B..Ibid. 
 
 9. A trustee, no matter how or from 
 whom he derives his authority, can 
 not purchase the trust-estate so as 
 to make a profit to himself. He is 
 not prohibited from purchasing; 
 but his purchase, when made, is 
 for the benefit of the cestui que trust, 
 who may, if he apply within a rea- 
 sonable time, have a re-sale. If 
 the 2:)roperty be ofTered for sale a 
 second time, and there be no ad- 
 vance, the trustee is held to his 
 purchase. — Brackenridge v. Holland 
 et al 377 
 
 10. If one man buy land with his own 
 money, and take the deed in the 
 name of another, a trust results by 
 implication in favor of him who 
 paid the money. — Jenison et al. v. 
 Graves et al 440 
 
 11. The existence of a resulting trust 
 may be proved by parol evidence, 
 in opposition to the face of the 
 deed and the answer of the trustee, 
 but to establish the trust, under 
 those circumstances, the clearest 
 and the strongest testimony must 
 be produced Ibid. 
 
 U 
 USURY. 
 
 See Chancery, 1, 2. 
 
 VARIANCE. 
 Debt on a writing obligatory for the 
 payment of one hundred and twenty 
 dollars. The declaration set forth 
 the sum in words as above. The 
 note, when produced on oyer, 
 •showed a promise to pay $120 ; "the 
 
 (in 
 
 sum being expressed in figures. 
 Held, that the variance was imma- 
 terial. — Lonyv. Long ; 293 
 
 VENDOR AND PURCHASER. 
 
 See Executors and Administra- 
 tors, 19, 20 ; Fraudulent Con- 
 veyance; Fraudulent Judg- 
 ment ; Lis Pendens ; Promissory 
 Notes, 2 ; Specific Performance; 
 Trust and Trustee. 
 
 1. The real estate of B. was, in 1823, 
 sold on execution under a judg- 
 ment recovered against him by A. 
 in 1822, which judgment had not 
 been replevied. A., the execution- 
 plaintifl, was the purchaser for 565 
 dollars. The property sold had 
 been appraised, under the statute 
 of 1820, at 4,640 dollars. In eject- 
 ment by A. for the premises, it was 
 held that no bid for the land could 
 be made under the statute of 1820, 
 for less than 2,320 dollars, the one- 
 half of the appraised value ; and 
 that the .sheriff's sale therefore for 
 565 dollars was void, and his deed 
 conveyed no title to the purchaser. 
 — Harrison el al. v. Doe d. Rapp...l 
 
 2. If the purchaser of real estate at 
 sheriff's sale be the execution-plain- 
 tiff, he is considered a purchaser 
 with full notice, and accountable 
 for all irregularities Ibid. 
 
 3. Debt by the assignee of a sealed 
 note for the payment of money 
 against the maker. The note was 
 dated on the 10th of June, 1817, 
 and payable on or before the 1st 
 of December, 1818. Plea, that the 
 note was given to the payee for the 
 purchase-money of a certain tract 
 of land wliich he represented to be 
 his, and for which he was to make 
 a title to the defendant when the 
 note should be paid ; that the payee 
 never had a title to any part of the 
 land ; and that, at the time of the 
 plea, he was insolvent and had ab- 
 sconded from the state. Held, that 
 the plea was, under the statute, a 
 good bar to the action. — Davis v. 
 Clements' 3 
 
 4. By the statute of 1817, 'real estate, 
 might he sold on an execution of 
 fieri facias, without an inquiry as 
 to the value of the rents and profits, 
 or a venditioni exponas ; unless the 
 execution-defendant required an 
 inquest. — Doed.Wayman v. Sai/lor. 
 
 ■ 33 
 
 4)
 
 INDEX. 
 
 516-517 
 
 5. The statute of 1821 Mipplied an 
 omission in that of 1817, by author- 
 izing a venditioni exponas and sale 
 of land, where the rents and profits 
 
 , had been ofiered for sale, but would 
 not bring a sufficient sum to pay 
 the debt Ibid. 
 
 6. A venditioni exponas was not ne- 
 cessary, under the statute of 1817, 
 except in cases where there had 
 been an inquest Ibid. 
 
 7. By the statute of 1810, an inquest 
 and venditioni exponas were neces- 
 sary without request Ibid. 
 
 8. A horse which was the property 
 of A. was purchased by B. at a 
 sheriff's sale on an execution 
 against C. After B. had sufficient 
 reason for believing the horse to 
 be A.'s property, he exercised acts 
 of ownership over him, and made 
 use of evasive measures to prevent 
 A. from obtaining him. Held, that 
 A. might recover in trover for the 
 horse against B.,.without proving a 
 demand and refusal. — Jamison v. 
 Hendricks 94 
 
 9. A. filed a bill in chancery against 
 B., the heir, and C, the adminis- 
 trator of D., stating that the com- 
 plainant had sold and conveyed a 
 lot of ground to D. without receiv- 
 ing the purchase-money, and that 
 D. had died insolvent. Prayer that 
 the lot might be sold to pay the 
 purchase-money. An order of pub- 
 lication was made as to the heir, 
 who was a non-resident. The ad- 
 ministrator filed an answer and 
 cross-bill, stating that the convey- 
 ance, though absolute on its face, 
 was intended as a mortgage to se- 
 cure the payment of a debt due 
 from A. to D., and praying a sale 
 of the lot to pay the debt. 
 
 Held, 1st, that there could be no de- 
 cree for the complainant without 
 proof that the order of publication, 
 as to the heir, had been made. 2d, 
 that parol evidence of the com- 
 plainant's admissions as to the 
 deed's being intended to be a mort- 
 gage, should be received with great 
 caution; and ought not, where there 
 are circumstances raising a con- 
 trarv presumption, to be permitted 
 lo control the deed. — Abern v. Biir- 
 nett ei al 101 
 
 • 10. To a debt on a writing obligatory 
 for the payment of money, the de- 
 fendant pleaded that the obligation 
 
 had been given for a pair of mill 
 stones, fraudulently represented to 
 be good, but which were of no 
 value. 
 Held, that in this case, and in that 
 of a breach of warranty, if, in ad- 
 dition to the fraudulent represen- 
 tations, or to the breach of war- 
 ranty, the defendant prove that the 
 article is of no value, or that it has 
 been returned or tendered within a 
 reasonable time, he defeats the 
 action but if it appear that the 
 article is of some value and has 
 not been returned or tendered, the 
 plaintiff recovers the value. — Wynn 
 et al. V. Hiday 123 
 
 11. Qucere, whether A.'s unconditional 
 possession of goods which had been 
 sold by him to B., renders the sale 
 per se fraudulent and void, or is 
 only evidence of fraud, as to A.'s 
 creditors. — Chinn v. Russell 172 
 
 12. In the sale of goods with an ex- 
 press warranty as to their quality, 
 assumpsit lies for the breach of 
 contract not under seal, or case 
 lies for the commission of the tort. 
 So, if an injury be occasioned by 
 the negligence of an attorney, or of 
 a stage proprietor, assumpsit lies on 
 the undertaking or case upon the 
 duty. — Cutler v. Cox 178 
 
 13. A. contracted to sell to B. certain 
 real estate, in consideration that 
 B. should give up a note held by 
 him against A., and pay to A. a 
 small sum of money. The giving 
 up of the note to A. was the prin- 
 cipal part of the consideration. B. 
 subsequently pledged the note to a 
 third person, and absented himself 
 from the country for seven years, 
 without paying any part of the 
 purchase-money. Held, that A. was 
 discharged from the contract.— £/- 
 liott v. Armstrong 198 
 
 14. A release, by the grantee, of the 
 covenant of warranty contained in 
 a conveyance of real estate, does 
 not affect the validity of the con- 
 veyance "^y'- 
 
 15.. The sale of real estate on a void 
 execution is a nullity, and vests no 
 title in the purchaser I^f^i'l- 
 
 16. A. made a verbal contract for the 
 purchase of a town lot, and, during 
 A.'s absence from the country, B., 
 partly with his own money, but 
 principally with A.'s properly ,com- 
 pieted the contract for \., and took 
 
 15)
 
 i)i7-518 
 
 li^DEX. 
 
 the deed in the name and for the 
 benefit of A. Held, that A.'s sub- 
 sequent ratification of B.'s acts, 
 made him liable to B. for the 
 amount paid for him by B. ; and 
 also rendered the lot as A.'s prop- 
 erty liable, from the date of the 
 deed, to a judgment against him in 
 favor of B !f>id. 
 
 17. In an action on a title-bond con- 
 ditioned to make a deed for real 
 estate on payment of the purchase- 
 money, the declaration averred a 
 payment of the money and a fail- 
 ure to m;ike the deed. Plea, that, 
 before the commencement of the 
 suit, the defendant had tendered 
 the deed, which was refused ; that 
 he had always been ready, and was 
 still ready, &c. Held, on demur- 
 rer, that the plea was good ; it not 
 appearing but that the payment 
 was made on the day the deed was 
 tendei-ed. — Gulletly v. The Board of 
 JiiSi ices of Oiven County 221 
 
 18. If the owner of real estate cove- 
 nant to make a title to it on pay- 
 ment of the purcha.se-money, and 
 the same be afterwards paid, the 
 obligor is not liable to an action 
 for not conveying, unless the deed 
 have been previously demanded. — 
 Sheets V. Andrews 274 
 
 19. Qucere, whether the purcha.ser, in 
 such case, .should tender the deed 
 to the vendor for execution /6('(/. 
 
 20. In the case of a breach of the 
 covenant of seisin, or of warranty, 
 contained in a conveyance of real 
 estate, or of a breach of a covenant 
 to convey, the measure of damages, 
 if there be no fraud, is the purchase- 
 money with interest Ibid. 
 
 21. Debt on bond for the payment of 
 money. Plea, that the obligation 
 had been given to the plaintiff in 
 part payment of a tract of land 
 purchased of him by the defend- 
 ant, which land had been previous- 
 ly devi.sed to the plaintiff; that 
 the plaintiff knew of the will, and 
 had had it under his control, for 
 three years next ensuing the testa- 
 tor's death, but had not, within 
 tliat time, caused the same to be 
 proved and recorded. Held, on de- 
 murrer, that the plea was insuffi- 
 cient.— Lon^ v. Lonr/ 293 
 
 22. The reversal of a judgment on 
 error, after a sale of land under it 
 on execution, does not affect the 
 
 purchaser's title. — Frakes v. Brovm. 
 
 295 
 
 23. A purchaser of land at sheriff's 
 sale is not obliged to show that the 
 debtor had not personal property 
 to satisfy the judgment. It is only 
 necessary for him to show the judg- 
 ment of a competent Court, and the 
 kind of execution which authorizes 
 the sheriff to sell. He has a right 
 to presume that all the intermedi- 
 ate proceedings are correct Ibid. 
 
 24. During the pendency of a peti- 
 tion for a divorce and alimony, the 
 Court may make an order on the 
 defendant requiring him not to 
 dispose of any of his real or per- 
 sonal property ; but the purchaser 
 of real estate from the defendant 
 will not be affected by the order, 
 unless he have actual notice of its 
 existence ; the pendency of the suit 
 and entry of the order not being 
 sufficient of themselves to avoid 
 the conveyance Ibid. 
 
 25. The purchaser of real estate at 
 sheriff's sale may obtain a decree 
 setting aside a deed which had 
 been made to defraud the judg- 
 ment-creditor, and securing the 
 purchaser's title against any claims 
 under the fraudulent deed ; but the 
 decree can not vest the absolute 
 fee in the complainant Ihid. 
 
 26. The right of the owner of real 
 estate to carry on trade there to 
 the exclusion of all others, can not 
 be made the subject of a separate 
 conveyance, so as to prevent a sub- 
 sequent holder of the property, 
 without his own agreement, from 
 pursuing his lawful business there. 
 — Taylor V. Owen et al 301 
 
 27. Same point decided. — Taylor v. 
 Moffatt et al 304 
 
 28. If a purchaser of real estate at 
 sheriff's sale refuse to pay the pur- 
 chase money, and the property be 
 sold for a less sum at a second sale, 
 the liability of the first purchase', 
 for the difference, under the statute 
 of 1825, may be established by 
 parol evidence. — Cmvgill v. Woodni. 
 
 332 
 
 29. The sheriff is not obliged to take 
 the mere word of any person, who 
 may bid at a sheriff's sale, that he 
 is .the agent of the execution-cred- 
 itor Ibid. 
 
 30. A subsetpicnt conveyance of real 
 estate, although first recorded, will 
 
 0)
 
 INDEX. 
 
 518-519 
 
 not prevail against a prior one 
 which is not recorded until after 
 the expiration of the time pre- 
 scribed by law, if the subsequent 
 purchaser had actual notice of the 
 prior conveyance. — Ricks v. Doe d. 
 Wright 346 
 
 31. If the sale of town lots for taxes 
 was authorized by the revenue act 
 of 1818 (which is doubtful), the 
 validity of a sale under the act can 
 only be established by legal proof 
 that the law had been strictly com- 
 plied with. — O'Brien et al. v. Coul- 
 ter el al 421 
 
 32. Two town lots, one with a house 
 on it, the other unimproved, worth 
 400 or 500 dollars, were sold to- 
 gether for a tax of 4 dollars. Held, 
 that the sale under those circum- 
 stances was illegal Tbid. 
 
 33. A judgment is no lien on land, 
 which the debtor holds by a bond 
 conditioned for the execution of a 
 title on payment of the purchase- 
 money, thougli he had taken pos- 
 session and paid the money before 
 the rendition of the judgment ; and 
 a sheriff's sale, on execution 
 against the obligee, of land so held, 
 conveys no estate to the purchaser. 
 — Modisett et al v. Johnson et a/ ..431 
 
 34. The statute of frauds, authoriz- 
 ing the sale of lands on execution 
 against a cestui que trust, does not 
 extend to the equitable interest 
 possessed by the obligee of a title- 
 bond Ibid. 
 
 VENUE. 
 See Error, 1 ; Pleading, 5, 11. 
 
 VERDICT. 
 See Executors and Administra- 
 tors, 12,22 ; Forcible Entry and 
 Detainer, 2 ; Jury, 3-7, 13 ; Re- 
 plevin, 7 ; Similiter. 
 
 VIDELICET. 
 See Plea DiNO, 9. 
 
 VOIRE DIRE. 
 See "Witness, 3. 
 
 W. 
 WAIVER. 
 
 See Lien, 2. 
 The defendant, by pleading to the 
 action, waives all objection on ac- 
 
 count of the want of process. — 
 HaysY.M'Kee 11 
 
 WARD. 
 
 See Guardian and Ward. 
 
 WARRANT. 
 
 See Constable. 
 The warrant of a justice of the peace, 
 on a charge of an assault and bat- 
 tery, commenced as follows : " The 
 state of Indiana, Allen county, ss: 
 To William Brown, constable of 
 Adams township, greeting." Held, 
 that no objection could be made to 
 the warrant, on account of its not 
 repeating, in the mandatory part 
 of it, the name of the state. — Cooper 
 V. Adamset al 294 
 
 WARRANTY. 
 
 See Damages, 3 ; Vendor and Pur- 
 chaser, 10, 12, 14, 20. 
 
 WILL. 
 
 1. A testator, commencing his will 
 by expressing an intention to dis- 
 poseof all his worldly estate,devised 
 to his wife all his lands and tene- 
 ments for life, together with all 
 his household goods and chattels. 
 If his wife married again, she was 
 still to enjoy the real estate, but 
 without power to dispose thereof 
 except by leasing it for a term not 
 exceecJing one year at a time. If 
 she married and died without is- 
 sue, the real estate was to descend 
 to a nephew of the testator; but if 
 she had issue, the estate was to de- 
 scend to such issue. The testator 
 died, having made no further dis- 
 position of his property, and leav- 
 ing no children. On a claim by 
 the testator's brothers, his heirs at 
 law, held, that all the personal es- 
 tate, including moneys and obliga- 
 tions, passed, by tiie will, to the 
 widow of the deceased. — Lutz et al. 
 V. Lutz 72 
 
 2. The construction of a will depends, 
 not so much upon any rigid prin- 
 ciple of law, as upon what appears 
 by the will to have been the testa- 
 tor's intention Ibid. 
 
 3. A will, after directing the personal 
 estate to be sold, and that the real 
 estate leased until the rents, with 
 the proceeds of the sale of the per- 
 sonal property, should be sufficient 
 
 (617)
 
 519 
 
 INDEX. 
 
 to pay the after named legacies, 
 contained the following provision : 
 " I will and bequeath to my sister 
 Isabel the sum of 50 dollars annu- 
 ally, to be paid out of the rents of 
 the place and the proceeds of the 
 sale of my personal property, and 
 continued until the following sums 
 are paid." The will then gave sev- 
 eral legacies, and directed that, 
 after their payment, the real estate 
 should be sold and a distribution 
 made. 
 Held, that in each year the 50 dollars 
 were to be paid to Isabel, before 
 any payment to the other legatees, 
 — Parks V. Perry 74 
 
 4. Held, that, by the statute law of 
 this state, a will, devising real 
 estate, must be in writing, signed 
 by the testator, and attested by two 
 credible witnesses in presence of 
 the testator; and that it may, in 
 the same manner, be revoked. 
 Held, also, that a will in such a 
 case as well as a revocation, is 
 valid without being sealed. — Doe 
 d. Knupp et vx. v. Patlison et o/...355 
 
 5. If land devised be afterwards sold 
 by the devisor to a stranger, the 
 devisee takes nothing by the de- 
 vise. — Raburn v. Shortridge 480 
 
 WITNESS. 
 See Bond, 6; Chancery, 17; Evi- 
 dence, 10, 1.3 ; Practice, 5. 
 1. One of two subscribing witnesses 
 to a bond being called to prove its 
 execution, denied his signature. 
 
 Held, that the other, if he could be 
 procured, should be examined ; but 
 if he could not be found, secondary 
 evidence might be resorted to. — 
 Booker V. Bowles 90 
 
 2. If a subscribing witness deny his 
 signature, the case stands in the 
 same situation as if his name were 
 not on the instrument Ibid. 
 
 3. If a witness be objected to as in- 
 terested, and his interest be proved 
 by other witnesses, the party call- 
 ing the witness has no right to ex- 
 amine him on his voire dire ; that 
 right belonging alone to the party 
 who makes the objection. — Wright 
 V. Mathews et al 187 
 
 4. The subscribing witness to a deed 
 resided in Ohio, and the acknowl- 
 edgment had been taken there be- 
 fore the mayor of Cincinnati. Held,' 
 that the deed — on proof that the 
 grantor had executed it, and that 
 the witnesses had subscribed it, in 
 the presence of the witness — was 
 admissible in evidence. — Ungles v. 
 Graves 191 
 
 5. No confession of interest made by 
 a witness, after a party is entitled 
 to his testimony, can render him 
 incompetent. — Sims el al. v. Givan. 
 
 461 
 
 6. To exclude a witness on the ground 
 of interest, he must appear to be 
 interested in favor of the party who 
 calls him Ibid. 
 
 WRIT OF INQUIRY. 
 See iNQtriRY, Wsir of. 
 
 END OF VOL. n. 
 
 V 
 
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