Seller v. Lingerman.

as follows: "The court now finds that, as alleged by the complaint, and admitted by the answer, the sum of money paid by the defendant on his bid, at said sheriff's sale, on the 3d day of September, 1861, was the sum of $817, and that the interest accrued thereon, up to this date, is the sum of $125, making in all the sum of $939. It is, therefore, ordered, adjudged and decreed, as part of the foregoing judgment, that, within ninety days from this date, the plaintiff shall pay into this court, for the use of the defendant, the sum of $939, so, as aforesaid, found due to him from the plaintiff, and that upon failure thereof execution therefor may be done on the property of the plaintiff.”

The appellee cannot complain that the order of the Circuit Court was inequitable. The appellant's money had been applied, upon a sale of the property, to pay a judgment against the appellee, and when he comes into a court, and asks the exercise of its chancery powers to avoid the sale for errors, for which the officer of the law, alone, is responsible, he must accept the relief upon equitable terms. Nor should the appellant be required to commence an action for the recovery of the purchase money, when success in the action might not enable him to secure a lien upon the land from which his money had removed a judgment. By the decree in this case, both a multiplicity of suits is avoided, and equity is done to both parties. But the ruling rests upon authority which meets our approval. In the case of Bunts v. Cole et al., 7 Blackf. 265, it was held, Mr. Justice SULLIVAN rendering the opinion, that "if a bidder at a sheriff's sale of real estate prevent others from bidding, by representations respecting the object of his bid, and then buy the property at the sale at a price much below its value, the sale is void as against public policy, and as a fraud upon the judgment debtor and his creditors. He is, however, entitled to be refunded the purchase money, which was applied to pay the complainant's debt." The court reversed the decree, with costs, and decreed that the

The State v. Mondy.

sheriff's sale was void, but that Cole should retain a lien on the land for the money paid by him.

The case of Banks et al. v. Bales, 16 Ind. 423, cited by the appellee, is not in conflct with this authority. The power possessed by the court to secure to the purchaser the return of his money, by decreeing a lien for the same upon the land struck off by the sheriff, would seem to render a tender of repayment of the sum, by the execution defendant, unnecessary.

The judgment of the Circuit Court is in all things affirmed, with costs against the appellant.

A. G. Porter, W. P. Fishback, and C. C. Nave, for appellant.

H. C. Newcomb, J. Tarkington, and P. S. Kennedy, for appellee.

THE STATE V. MONDY.

RETAILING-LIQUOR LAW.-In an indictment for retailing liquor without a license, it is sufficient to charge that it was intoxicating lipuor, and that the quantity sold was less than a quart, without averring the kind, or exact quantity sold.

APPEAL from the Tippecanoe Circuit Court.

GREGORY, J.-The defendant was indicted in the court below for retailing. It is charged that James Mondy, on &c., at &c., did then and there unlawfully sell intoxicating liquors, in a less quantity than a quart at a time, to Lirum Ford, for the sum of five cents; he, the said James Mondy, then and there not having license to sell intoxicating liquor by less quantity than a quart at a time. On motion of the appellee, the Circuit Court quashed the indictment, and the State appeals.

The State v. Mondy.

The objection urged is that the kind and precise quantity of the liquor sold are not stated. This is not necessary. To constitute a sale, within the meaning of the act of 1859, it is only necessary that some quantity, less than a quart at a time, be sold for some price. It is urged that to charge that a less quantity than a quart was sold, is stating a conclusion of law, and not a fact, and the case of Brutton v. The State, 4 Ind. 601, and Divine v. The State, id. 240, are cited in support of this position. In the latter case, the indictment failed to allege a price for which the liquor was sold; in the former, neither the price nor precise quantity is stated. This court held that the averment of a sale, under such circumstances, is a conclusion of law. This does not cover the case in judgment, and we are not inclined to extend the authority of these cases further than the points ruled, The statute requires no greater degree of certainty in criminal than in civil pleadings, (M'Cool v. The State, 23 Ind. 127.) and it would be a sufficient statement of a sale, in a civil case, to say that A B sold to CD intoxicating liquor, in a less quantity than a quart at a time, for five cents. Indeed, we cannot see how it can be said that this is stating a conclusion of law, and not a fact. The kind of liquor is wholly immaterial, so that it is intoxicating, it may be a compound.

The judgment is reversed, with costs, and the cause remanded for further proceedings.

D. E. Williamson, Attorney General, and F. B. Everett, for the State.

J. M. La Rue, for appellant.

Brown v. Snavely.

BROWN V. SNAVELY.

COSTS.-Where the defendant appeals from a judgment rendered by a justice of the peace against him, in an action for a trespass to personal property, and does not reduce the judgment five dollars, he is ltable to a full judgment for costs.

SAME.-Section 398 of the code, 2 G. & H. 227, which provides that in actions for damages solely, not arising out of contract, if the plaintiff does not recover five dollars damages, he shall recover no more costs than damages, &c., does not apply to such a case.

APPEAL from the Howard Circuit Court.

ELLIOTT, C. J.-Snavely, the appellee, sued the appellant for a trespass to personal property, before a justice of the peace, and recovered a judgment for the sum of three dollars and twelve cents, and costs. Brown appealed to the Circuit Court, where judgment was rendered against him for three dollars and costs. Brown moved the court to tax all the costs, except the sum of three dollars, to Snavely, the plaintiff below, but the court overruled the motion, and rendered a judgment against Brown, the defendant below, for full costs, which presents the only question made in the

case.

The ruling of the Circuit Court was right. Section 70 of the justices' act, 2 G. & H. 597, provides that, “Costs shall follow judgment in the Court of Common Pleas, or Circuit Court, on appeals, with the following exceptions: First, if either party against whom judgment has been rendered appeal, and reduce the judgment against him five dollars or more, he shall recover his costs in the Court of Common Pleas, or Circuit Court, when the appellant appeared before the justice. Second, if either party in whose favor judgment has been rendered appeal, and do not recover at least five dollars more than he recovered before the justice, the appellee shall recover his costs in the Court of Common Pleas, or Circuit Court."

These are the only exceptions made by the statute. Brown appealed, and did not reduce the judgment against

Clark v. Duffey.

him five dollars. The court, therefore, was right in adjudging that the costs should follow the judgment. Section 398 of the code, 2 G. & H. 227, to which we are referred by the appellant's counsel, is not applicable to the case.

The judgment of the Circuit Court is affirmed, with 10 per cent. damages, and costs.

J. W. Robinson, for appellant.

CLARK V. DUFFEY.

STATUTE OF FRAUDS.-A took from B a chattel mortgage, which he failed to have recorded within ten days after its execution. B sold the mortgaged property to C, and took his note for the price. Subsequently, C agreed with A, orally, to surrender the property to him, if he would take up and deliver to him, C, the note given by him to B. A, in pursuance of the agreement, took up the note, and tendered it to C, who refused to surrender the property. Suit by A to recover the value of the property. Held, that the contract between A and C was not a contract of sale, but an agreement on the part of C to waive his claim, and allow A's mortgage to take effect upon the property, and, hence, was not within the statute of frauds.

APPEAL from the Decatur Circuit Court.

RAY, J.-The appellant sued the appellee before a justice of the peace. In his complaint, he averred that on the 4th day of October, 1861, one Clemens Bymer was indebted to him in the sum of $110, due on or before the 1st day of January, 1863, and that to secure the note, Bymer executed a mortgage on two mares and a wagon, then owned by Bymer; that the appellant neglected to record his mortgage within ten days, and that Bymer afterward, without the knowledge or consent of appellant, disposed of one of the mares to a person unknown to appellant, who conveyed it away beyond the reach of appellant. That afterward, Bymer secretly, and without appellant's knowledge, sold