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Vawter v. Brown.

On the 28th of March, 1855, John Kelly assigned the same bond to James H. Cravens.

On the 23d day of April, 1856, Bruden executed a deed for the 160 acres to Cravens, and took up his bond.

On the 1st day of May, 1856, Cravens made a deed to Brown for the 40 acres bonded to him by Daniel M. Kelly, on the payment by Brown to him (Cravens,) of 225 dollars.

Thus Brown has obtained a deed for the 40 acres which he purchased of Kelly, and has paid the full consideration therefor, but he did not get his deed directly from Kelly, nor did he pay the consideration to him. Did he receive his deed by Kelly's procurement, so that Kelly is entitled to say that he made the deed and is entitled to the consideration? Did Brown unnecessarily pay Cravens to procure his deed? In other words, did Kelly procure the deed from Cravens to Brown? There is no evidence of this fact. It may be true that Cravens has made off of some of the parties the 225 dollars paid him by Brown. It may be that he was to pay out what was due to Bruden and take the 120 acres left after taking out Brown's 40 acres, but the evidence does not show it. We are not informed what James Kelly paid Daniel for the assignment of the bond, nor what Cravens paid James Kelly.

On the evidence we can not say that Brown was not compelled to pay Cravens to procure the deed which Kelly had bound himself to, but was unable to make.

Another point.

The evidence does not show that Brown had come under a binding obligation to Vawter to pay the note sued on to him so as to be estopped from setting up the defence made in this case. It is not shown that Vawter purchased the note on the faith of a promise on the part of Brown to Vawter to pay the same to him.

The Court below permitted an amendment to be made, by the defendant, to his answer, after the cause was reversed in

Sugar Creek Township v. Johnson et al.

the Supreme Court, and remanded to the Court below. This, it was in the power of the Court to permit. And in the absence of a bill of exceptions, showing the objection urged below, and the ground upon which it was overruled, or that it was overruled arbitrarily and without ground, we must presume it was done upon sufficient ground.

Per Curiam.-The judgment below is affirmed, with costs.
Edwin P. Ferris, for the appellant.
H. W. Harrington, for the appellee.

SUGAR CREEK TOWNSHIP v. JOHNSON et al.

PLEADING.-In an action for a mandate to compel a township to perform a judgment hitherto rendered against her, a copy of the record of the cause in which the judgment was rendered should be made a part of the complaint.

PRACTICE. Where a defective answer is filed in such case, and the

plaintiff demurs thereto, the demurrer will reach back to the complaint, and should be sustained as to the complaint, and overruled as to the answer, for a bad answer is good enough for a bad complaint.

APPEAL from the Shelby Circuit Court.

PERKINS, J.-This was a suit for a mandate to compel Sugar Creek township, Shelby county, Indiana, to execute a judgment, alleged in the complaint to have been rendered against her by the Shelby Circuit Court. No transcript of the judgment was filed with the complaint, and none appears in the record.

The defendant answered the complaint. The plaintiff de

Bodkin v. The State.

murred to the answer and the Court sustained the demurrer. The demurrer reached back to the complaint and should have been sustained as to it, and not as to the answer. The complaint was bad on account of the absence of a transcript of the judgment sought to be enforced. That judgment was the foundation of this suit. The record before us shows no cause of action. A bad answer is good enough for a bad complaint.

Per Curiam.-The judgment is reversed with costs. Cause remanded with leave to amend.

Wm. M. McCarty and J. M. Sleeth, for the appellant. Thomas A. Hendricks and Martin M. Ray, for the appellees.

BODKIN V. THE STATE.

CRIMINAL LAW AND PRACTICE.-The record in a criminal prosecution upon indictment, should show that a grand jury was impanneled and returned the indictment into Court, according to law; but if the record, at the time of trial, fails to show such facts, it is competent, during the term at which the trial was had, for the Court to make the entry of record necessary to show such facts.

APPEAL from the Grant Circuit Court.

WORDEN, J.-Indictment for retailing. Motion to quash overruled, and exception. Trial, conviction, and judgment. Before trial and conviction, the record did not show any impanneling of a grand jury, or return by that body of any indictment into Court. The Clerk says that "on the 15th day of February, 1862, the following indictment was filed in this cause, in the office of the Clerk of the Grant Circuit

Carpenter v. The State.

Court, in the following words, to-wit," &c. After trial and conviction, which took place at the August term, 1862, the attention of the Court being called to this defect in the record, the Court caused an entry to be made then as of the previous term, showing the impanneling of a grand jury on the 13th of February, 1862, and that such grand jury then returned into open Court sundry bills of indictment, indorsed as true bills, and ordered to be recorded in the proper record. We have no doubt of the authority of the Court to make the entry, at the August term, as was done. But still there is nothing in the record to show that the indictment, on which the defendant was tried, was one of the bills thus returned into Court by the grand jury. The Clerk does not certify that it was one of them, nor is there anything in the record by which it can be identified as such.

Per Curiam.-The judgment is reversed, with costs.

H. D. Thompson, N. W. Gordon, and W. R. Pierse, for the appellant.

Oscar B. Hord, Attorney General, for the State.

CARPENTER V. THE STATE.

CRIMINAL LAW AND PRACTICE.-An information for selling liquor without license, need not state the kind of liquor sold, but should aver that it was intoxicating liquor, and on the trial it must be proved to have been such liquor, as the same is defined in the statute on that subject.

APPEAL from the Steuben Common Pleas.

Per Curiam.-Information for retailing intoxicating liquors

Evans et al. v. Elliott.

without license. The judgment below is affirmed, with costs, on the authority of Simpson v. The State, 17 Ind. 444. J. A. Woodhull, for the appellant.

Oscar B. Hord, Attorney General, for the State.

EVANS et al. v. ELLIOTT.

EVIDENCE-DAMAGES.-Where a person sells a tavern-stand, and, as a part of the contract of sale, agrees not to open another tavern in the same town for a specified period of time, and then opens another in violation of said agreement, and his grantee sues to recover damages for such violation, it is competent for him, on the trial, to offer evidence tending to prove that the direct and immediate result of opening and keeping the tavern by his grantor was to reduce the value of the property in question one half, and that it was at once so reduced, and could not have been sold for more than half its former value, and that he was compelled to and did sell it for 800 dollars, which was less than half its former value.

APPEAL from the Wayne Common Pleas.

DAVISON, J.-Elliott, who was the plaintiff, brought an action against Evans and Gates to foreclose a mortgage on real estate in Wayne county. The mortgage bears date November 16, 1854, and was executed by the defendant, Evans, to the plaintiff to secure the payment of 5 several promissory notes, of the aggregate amount of 1420 dollars. Gates was defaulted. The other defendant, Evans, appeared and answered. His answer alleges, substantially,

these facts:

Said real estate is a house and lot in the town of Washington; was at the date of the mortgage owned by the plaintiff,

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