1. The courts will not judicially notice the
contents of the legislative journals: their
judicial knowledge does not extend to
the history of statutes on their passage
through the legislature.- Coleman v. Dob-
bins,
156
2. The facts in relation to the passage of
an act, would, if formally presented, be
a proper subject of judicial inquiry and
determination.
JUDGMENT, CONFESSION OF.
See JURISDICTION, 4. REPLEVIN-BAIL.
A warrant of attorney to "enter" judg-
ment, authorizes the attorney to confess
judgment, especially where it was
clearly intended to clothe him with that
power.-Mason v. Smith,
73
2. Where parties appeared, proceeded to trial
before a jury and examined a witness;
and the defendant, to save time, admitted
certain allegations of the complaint, not
amounting to an admission of the plain-
tiff's right to recover; and judgment was
rendered upon the verdict of the jury—
held, that judgment was not confessed.-
Crockett v. Calvert,
3. Quære, are the legislative journals re- See CONSTITUTIONAL LAW, 6. JUSTICE OF
cords kept in obedience to the constitu-
tion?
Ibid.
4. If so, it seems that when a party claim-1.
ing any right or defense growing out of
the action of the assembly, brings the
parts of the journal relied upon to the
judicial knowledge of the Court, they
will be inspected like other records, and
the Court will determine whether the
legislative action they record, on the bill
in question, is in accordance with the
constitution.
Ibid.
See ATTACHMENT, 3. COSTS, 2. JUDGMENT,
CONFESSION OF. JURISDICTION, 10, 11.
REPLEVIN-BAIL.
The defendant in ejectment, to show title,
offered in evidence the record of a judg-
ment, and the proceedings thereon, show-
ing that the premises in question had
been sold and conveyed to him by she-
riff's deed. The judgment had been
taken by default upon a declaration con-
taining two several counts on two seve-
ral notes. One of these notes was made
before the appraisement law of 1842 took
effect, the other, after it came in force;
but there is nothing in the record show-
ing that the judgment was restricted to
one count only. The defendant admitted
that the property had not been appraised.
Held, that the judgment was rendered
upon both the notes, and, therefore, there
having been no appraisement of the pro-
perty, the sheriff's deed was no evidence
of title.-Babcock v. Doe d. Bowman, 110
Whenever in a suit in the Common Pleas
Court, the title to real estate comes in
question, the jurisdiction fails, and the
cause must be dismissed.-Dixon v. Hill,
147
But judgment may be rendered for the
Ibid.
Suit in the Common Pleas for injury to
land. On the trial the plaintiff proved
a survey of the lands described in the
complaint, whereby it appeared that the
defendant was in possession of and cul-
tivating some fifteen acres included in
the survey; and then he proposed to in-
troduce, as evidence in the cause, his
land-office certificate, to the introduction
of which an objection was raised and
sustained. The cause was dismissed on
the ground that the title to real estate
came in issue. Held, that there was no
error in this.
Ibid.
A proceeding in court by confession of
judgment, is for the enforcement of a
private right, and is, consequently, by
virtue of section 1, p. 27, 2 R. S., an ac-
tion in the courts of Indiana. The courts
of this State have, by statute, jurisdic-
tion in all actions, suits, and cases,—
terms used in the statutes synonymously,
or nearly so.-Shaw et al. v. Gallagher et
al.,
252
5. In all actions against guardians and
their sureties, the Circuit Court and
Common Pleas have concurrent jurisdic-
tion.-Hollingsworth et al. v. The State,
mon law he was only a conservator of
the peace. Willey v. Strickland, 453
6. Writ of mandate against a canal com-
pany, commanding them to rebuild a
bridge, or show cause, &c. The bill of 10. There is no presumption in law that a
exceptions states that the company ap-
peared and moved to dismiss the suit on
the ground that their principal office and
place of business is in a county over
which the Court has not jurisdiction;
that the motion was resisted by the
plaintiff, but sustained by the Court.
Held, that as the plaintiff failed in the
Court below to state the grounds upon
which he resisted the motion to dismiss,
and the record being silent on the sub-
ject, it must be presumed that there were
before the Court facts sufficient to justify
its action under the statute; but,
Held, also, that this case is not within that
class of actions which must be instituted
in the county in which the subject of
the action, or some part of it arose; nor
does the act of 1852, prescribing the
manner of proceeding against canal
companies for failure to rebuild or re-
pair bridges, apply to it.-The State v.
The Whitewater Valley Canal Co., 320
7. A defect of jurisdiction is not waived
by the defendant's appearance to the ac-
tion: the suit must be dismissed when-
ever, in its progress, such defect appears.
Ibid.
8. A. sued B. and C. in the Court of Com-
mon Pleas, alleging that he held a judg-
ment against D. which was a lien on
certain real estate belonging to D.; that
B. also had a judgment against D. which
was a prior lien; that B. sued out an
execution, and placed it in the hands of
C. the sheriff, who by fraud and collusion
with B., and without the knowledge of
the plaintiff, sold the real estate without
advertising it according to law, and be-
fore ten o'clock on the day of sale, and
that B. became the purchaser for a sum
less than his judgment; that the plain-
tiff and others were ready to bid, and
would have given more for the land than
the lien of B. Prayer, that the sale be
set aside as fraudulent. Demurrer as-
signing for cause want of jurisdiction of
the subject-matter, overruled; answer
making an issue; and judgment that
the sale be set aside. Held, that the title
to real estate being directly in issue, the
Court had no jurisdiction, and its judg-
ment cannot be sustained.-Clark et al.
v. Trovinger,
334
9. The civil jurisdiction of a justice of the
peace is all conferred by statute: at com-
justice in a foreign state can render a
I bid.
11. A declaration setting up such a judg-
judgment in a civil action.
ment, without showing that the justice
had jurisdiction of the cause, was, under
the old practice, bad on general demur-
Ibid.
16. The legislature has not included the
actions specified in section 4 of the Com-
mon Pleas act, as civil cases. Ibid.
17. That act limited the term "civil cases,"
to that class of common-law actions not
heretofore ranked with equitable, or fi-
duciary.
Ibid.
18. The actions contemplated in sections
11 and 12 of the Common Pleas act and
section 5 of the Circuit Court act, are
different from those specified in section
4 of the Common Pleas act; and statu-
tory provisions touching the former
class, do not necessarily affect the latter.
2. Upon an account stated, A. owed B. 284
dollars. A. had incurred a part of the
debt for C.; and it was agreed that A.
should pay 200 dollars of the amount in
railroad stock, and that the residue should
be paid by the note of C. In a suit by
B. for failure to pay the stock, it ap-
peared that the demand was barred by
limitation, unless it was taken out of the
statute by the delivery of the note of C
within six years. Held, that the de-
mand was barred.-Carlisle et al. v. Mor-
ris,
421
3. In order to take a demand out of the
statute of limitations by a part payment.
it must appear that the payment was
made on account of the debt for which
the action was brought.
Ibid.
An admission of continued indebtedness
may be inferred from the fact of part
payment; but the Court cannot imply
such admission as an inference of law.
Ibid.
Whether such admission has been made,
is a question of fact for the jury; and
when made, it is only prima facie evi-
dence, and may be rebutted.
Ibid.
See CRIMINAL LAW, 27, 28.
See INFANT, 3, 4.
MASTER AND SERVANT.
See BAILMENT, 1.
See RAILROAD COMPANY, 5, 6.
1. Suit for injury to plaintiff's land and
mill, by means of water backed upon
them by a dam maintained by defend-
ants. Defendants, in one paragraph of
their answer, averred that they had a
right to maintain the dam because it
was erected in the year 1826, to propel a
mill, and had been continuously used by
them and other persons under whom
they claim, without molestation or hin-
drance, from 1826 till the commencement
of this suit, at which time they had
peaceable possession, and were using
the dam to propel a mill, as they law-
fully might. Held, that the paragraph
was bad on demurrer because it did not
aver that the possession or user was of
right, or under claim of title.-Postle-
thwaite et al. v. Payne,
2. The Court instructed the jury in this
case, that "the continuance of an unau-
thorized dam or obstruction in a stream
or watercourse, even for a great length
of time, of itself confers no right upon
the parties to further maintain the same
to the injury of any other person inte-
rested in the use of the stream. Held,
that the instruction was correct, but too
narrow: the Court might have added
that possession or user, under claim of
right, does confer title, when continued
for twenty years; and that the jury
might infer possession under such claim,
from simply twenty years' unexplained |
possession.
Ibid.
3. Evidence of a suit brought within twenty
years against the occupants of a mill
dam, but compromised, is admissible to
rebut the presumption of an easement
by prescription.
Ibid.
4. Where a dam had been in existence more
than twenty years, but had been raised
a foot higher within twenty years, the 1. The payment of a mortgage may be
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2. A note, and mortgage to secure the
same, if made upon the consideration
of natural love and affection, will be
supported, where there are no rights of
creditors, or other third persons, inter-
vening to disturb the rights of the par-
ties thereto.-Malett et ux. v. Page et al.,
364
8. The recitals in a mortgage, if made un-
der the direction of the owner of the
mortgaged premises by one who is not
the owner thereof, will operate as an
estoppel in pais upon the owner, unless
this fact be modified by other circum-
stances.
Ibid.
4. It is not competent for one who has
directed another to execute and deliver
a mortgage upon his own property to a
third person, to set up against the mort-
gage a contemporaneous understanding
between himself and the mortgagor in-
consistent with the terms of the mort-
gage.
Ibid.
5. The commencement of a suit for the re-
covery and enforcement of a note and
mortgage, by the mortgagee in this case,
is sufficient evidence of her acceptance
thereof.
Ibid.
6. A. directs his son B. to mortgage a por-
tion of his own lands to his infant
daughter, C., to secure the payment to
her of a sum of money, promising to
convey the same to B. at a subsequent
time. The mortgage was executed and
delivered according to directions, the
only consideration for A.'s promise be--
ing his natural love and affection for
his children. He subsequently changed
his mind before conveying to B. the
lands mortgaged to C., and without au-
thority from C. entered the mortgage
satisfied upon the record. Held, that
upon suit brought by C. and D., her
husband, against A. and B., to set aside
such entry of satisfaction as fraudulent,
of L. D. Stickney & Co., of which firm
Key was a partner. The decree is
against the defendants, Key and wife,
for the amount of the note and interest;
and in case the mortgaged premises
should fail to satisfy the debt, then that
the plaintiffs have further execution
against the defendants, Key and wife, to
satisfy the same.
Held, that the personal judgment against
Mrs. Key, is erroneous. She is in court for
the sole purpose of concluding her marital
rights in the mortgaged premises. Hav-
ing executed the mortgage with her hus-
band, she is a proper party for that pur-
pose. But she is not a debtor, nor in
any other sense a party to the suit.
Held, also, that the decree should be
against Key alone,-ordering the mort-
gaged premises and all the rights of
Key and wife therein to be sold, &c.;
and in case the proceeds should not be
sufficient to satisfy the debt, then that
further execution go to be levied of Key's
property only.-Key et ux. v. Addicks et
al.,
MOTION IN ARREST OF JUDGMENT.
NAVIGABLE STREAMS.
See HIGHWAY, 1, 2.
NEGLIGENCE.
and foreclose the mortgage, the plaintiffs See APPEAL, 1. EVIDENCE, 14. PRACTICE,
were entitled to the relief sought. Held,
also, that a resulting trust in favor of
A. could not arise, in such case, upon 1. This Court would set aside the granting
any pretext whatever.
7. Complaint to foreclose a mortgage exe-
cuted by Key and wife to secure the note
of a new trial with great reluctance. A
case might occur in which it would do
it; but where the court below conduct-
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