UNIVERSITY OF CALIFORNIA )S-ANGEi.:, LOS ANGELES ■v- p° ' LAW LIBRARY ncULn LIBBASr ^ ^■ifi^^ms 3>« n \ j\ '^;/n4 iTvi-io^' ■'^- rJi^^NV^oi^ avHeiHv^ "f^iTIONVSOl^ „, ,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»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 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»■. '--"'"\ "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, anEK 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 ) 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 '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] 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[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 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 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 (618) '^(^AWHHIl-^v^ •i7l]DNVS01^ .\l-LIBRARYY^ .5MEUNIVER% .v^OSANGEL/; 4'my'^- O u- '^/^a3AiNa 't?AWHHn-l\' :AlilBRARY6^ '^o-mmn- ''^ommm'^ z:^ ^lOS-ANCEifj>^ ^1-L1BRARY6: i>-o ?-iinsiv.^:m^ '^\ \V\[UNh 1 ,5; '^%130NV-S01^^ '?'/f^..,._.x^ :"■. ,— ' 1 1- 1 ir^ ^ .<,X^\L Lll.-'ll- Ml 1 •■ 5 1 ir^ :^:, : ,~_,-P* LIBRARY ^sIhF'^^^B lALirU% ^V)K/> RS i»nk ^IKSlii lli-i^^ ^l-< "*l %i I ^/A a, *«»^ / 1 . .\n^.\M<:Fi