3. That if the property, in this case, can not be sold under the authority of the State, and the proceeds applied to the support of commcn schools, then the title will remain in the Seminary corpor ation, notwithstanding any such attempted sale; but if such sale can be made, without the consent of the corporation, consistently with the Federal Constitution, then the sale, when made, will be valid and vest the title in the purchaser. Ibid.

COURT OF COMMON PLEAS.

1. JURISDICTION.-The jurisdiction given to the Court of Common Pleas to foreclose mortgages, confers, also, the power in such cases to settle the title to the mortgaged real estate whenever it shall be in issue. Denny v. Greater,

20 2. ADMINISTRATOR'S SALE.-In an application, in the Court of Common Pleas, by an administrator, for the sale of real estate of his intestate, the record says: "It appeared to the satisfaction of the Court that process had been served on the defendants," some of whom were minors, "more than ten days before the first day of the term," &c., and thereupon a guardian ad litem was appointed and answered for the infants. The record on appeal shows that writs were regularly issued against the defendants, but fails to show that any returns were ever made thereon. The application was granted by the Court; the land directed to be sold at public auction; it was so sold; and the auctioneer, whom the administrator had employed to cry the sale, having himself made the last and highest bid therefor, said land was sold to him by the administrator. The sale was duly reported to and confirmed by the Court. After the money had been paid according to the terms of the sale, the fact was duly reported to the Court, and, upon further consideration, a deed was ordered to be executed to the purchaser. Two years afterwards, a deed was made and reported and approved. Over eleven years after the confirmation of the sale, the heirs of the intestate sue for the possession of the land.

Held, 1. That the facts recited in the record do not exclude the inference that due notice was given to the defendants of the pendency of the application, and it will therefore be presumed by this Court that it was given.-Hawkins v. Ragan,

193

3. Held, 2. That the sale to the person acting as auctioneer, under the circumstances, was a sale to a third person and valid. Ibid. 4. Held, 3. But, if the auctioneer should be held to have been a trustee, and his purchase to have been therefore unauthorized, yet it could not be impeached collaterally, as it is attempted to do in this case, but it should have been attacked in a direct proceeding to set aside the sale, and re-offer the property; and such proceeding should have been commenced in a reasonable time after the sale and confirmation, and before the property had passed into the hands of bona fide purchasers, without notice. Ibid.

5. REMISSION OF FORFEITURE.-The Court of Common Pleas and Circuit Court have no power to remit judgments upon forfeited recognizances, except upon cause shown.-The State &c. v. Speck, 211 6. JURISDICTION.-The Circuit and Common Pleas Courts have jurisdiction, on the application of his creditors, to set aside a fraudulent sale of real estate, made by a deceased person.-Tyler v. Wilkerson, 473

CRIMINAL LAW AND PRACTICE.

See PRACTICE, 28.

1. An indictment or information, under § 11 of the act of March 5, 1859, (Acts 1859, p. 202), for selling or giving away liquor to a minor, need not state the kind of liquor sold or given away, but must aver it to have been an "intoxicating liquor;" and on the trial it must appear that the liquor was within the definition of the term, "intoxicating liquor," given in § 2 of the act.-Downey v. The State,

37

2. In an indictment or information for selling liquor without license, contrary to law, it is sufficient to allege generally that the defendant sold intoxicating liquor," without stating what particular kind of liquor he sold.-Downey v. The State,

82

3. CONCEALED WEAPONS.-An information for carrying concealed weapons will be sufficient if it substantially follow the language of the statute on that subject, and it need not allege that the defendant unlawfully carried said weapon, or was in the habit of carrying the same, &c.-The State v. Swope,

106

4. EVIDENCE. In a criminal prosecution, the defendant may prove, under the plea of not guilty, that he had already been put in jeopardy on the same charge, and such defence need not be specially pleaded. Danneburg v. The State,

181

5. LIQUOR, &c.-An information for retailing without license will be bad, unless the affidavit upon which it is based also avers that the sale was made without license.-The State v. Carpenter, 219 6. It is sufficient for the information to aver that the defendant sold "intoxicating liquor," without specifying the kind of liquor sold. Ibid.

7. It is not necessary for it to aver that the liquor sold might have been used as a beverage. Ibid.

8. ARSON. The criminal law of this State on the subject of arson, in burning a dwelling house or barn, does not embrace the burning of an unfinished house or barn, in process of construction, which has never been actually occupied or used for the purposes for which it is being erected.-The State v. Wolfenberger,

242

9. 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.-Bodkin v The State,

281

10. 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.-Carpenter v. The State,

282

11. An information for arson, which contains an averment in these words: "and the said A B is in the Vigo county jail on the charge of said felony, and not indicted by the grand jury," sufficiently shows that no indictment had been returned by the grand jury against the defendant on that charge.- Wilson v. The State, 384 12. An information is sufficient, both to give the Court of Common Pleas jurisdiction, and to allow proof of a former conviction of the defendant for a like crime, which charges that the defendant, "on, &c., at, &c., did feloniously steal, take and carry away two horseshoes, of the personal goods and chattels of A, of the value of 75 cents, and that, in default of 100 dollars bail, required by the committing magistrate, to secure his appearance at the next term of the Allen Circuit Court to answer said charge, the defendant was committed to the jail of Allen county, where he is now confined, and that there is no indictment now pending against him for said charge, and that at the February term, 1858, the said defendant was indicted in the Allen Circuit Court for the crime of petit larceny, and pleaded not guilty thereto, and was in said Court duly convicted of said charge, and judgment was rendered in pursuance of said conviction."-Dougherty v. The State,

442

13. IDEM SONANS.-The names "Geesler" and "Geissler," are idem sonans, and the averment in an information that an act was done by the former and proof that it was done by the latter involve no fatal variance.-Cleaveland v. The State,

444

14. Where the record on appeal to this Court, in a criminal case, shows that two indictments were duly returned against the defendant, it should also identify the particular indictment upon which the defendant was tried as one of them.-Parks v. The State, 513

DAMAGES.

1. MEASURE OF DAMAGES.-The measure of damages, in actions for the breach of the covenant of warranty and quiet enjoyment, upon eviction by title paramount, is the purchase-money with interest.Benton v. Recds,

87

VOL. XX.-36

2. RECOUPMENT. And in such actions, the covenantor is entitled to no recoupment of the rents and profits received by the covenantee for the use and occupation of the premises, unless such covenantor shows that he has actually paid such rents and profits to the holder of the paramount title. Ibid. 3. EXEMPLARY DAMAGES.-In that class of wrongs, the commission of which subjects the offender to a prosecution in the name of the State, under her criminal law, in addition to the civil remedy afforded the injured party, exemplary damages can not be allowed to such party.-Humphries v. Johnson, 190

4. 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 one-half its former value.-Evans v. Elliott, 283

5. VENDORS AND PURCHASERS.-Where there is a failure of title to a tract of land purchased and taken possession of, and there is not a rescission of the contract on that account, the measure of damages on eviction from such part, in the absence of special circumstances, is a sum bearing the same proportion to the price of the whole land which such part bears to the whole tract of land.-Hoot V. Spade, 326

DEMAND.

1. ORDER-DEMAND.-Where an order is drawn in proper form, by the secretary of a corporation, upon the treasurer thereof, for the payment of a sum of money, actually due from the corporation to the payee of the order, it is not necessary for the payee to present it to the treasurer for payment, within a reasonable time after receiving it, or at any time before suing upon it, as a condition precedent to such suit.-The Indiana and Illinois Central R. R. Co. v. Davis,

6

2. DEMAND TENDER.-Where, by its charter, in order to entitle a corporation to appropriate private property, it is required first to demand of the owner the relinquishment of the same, and to tender him a fair compensation therefor, if the owner is an infant such demand and tender would be inoperative against him, and need not therefore be made by the corporation.-The Indiana Central &c. R. R. Co. v. Oakes,

457

3. NOTE. Where a note is made payable on demand, no demand need be made before suit is brought. The suit is a sufficient demand.— Fankboner v. Fankboner,

62 4. When a note is made payable at a particular place, a demand of payment there need not precede an action on the note, but, if the defendant in such action, establishes ability and readiness at the time and place to pay, the plaintiff can not recover costs.-The Eaton, &c., R. R. Co. v. Hunt, 457

DEMURRER.

1. A single demurrer, which purports to be filed to each of several paragraphs of a complaint or other pleading, should be taken distributively, as a separate demurrer to each.-Fankboner v. Fankboner,

DEPOSITIONS.

62

1. SUPPRESSION OF DEPOSITIONS.-Under section 266, 1 G. & H. p. 178, if the party against whom a deposition is filed wishes to have it suppressed for any defect disclosed in the deposition, he should make his objections before entering upon the trial; but, if such objection is made in time, and a determination thereof is not made by the Court before entering upon the trial, such objection will be considered to have been waived by the objector's failure to press the same to a decision before entering upon the trial.-Graydon v. Gaddis, 515

DESCENT.

1. Where a person of illegitimate birth acquires property, and dies intestate, and without issue or their descendants, and leaves no mother surviving him, but leaves half-brothers and sisters, such half-brothers and sisters are entitled to his estate, whether the father of the deceased was dead or alive, because his natural father, if alive, could not inherit from him.-Ellis v. Hatfield, 101

2. DESCENT-ACTION.-In 1859 a man died, leaving a widow and children. One-third of his real estate descended to his widow. She and B, in 1860, executed a joint and several promissory note for the payment to C of a sum of money. Afterwards she and B intermarried. She then died, the children by her former husband surviving her. B then became insolvent. C sued the children by

the former husband to subject the interest which had descended to their mother, as aforesaid, to the payment of said note. The children claimed that, by reason of her subsequent marriage, she took but a life estate therein, and that, therefore, it was not subject to sale for the payment of said note.