9. TESTIMONY OF ATTORNEYS.-In such case, it was attempted to show, by the testimony of an attorney, in reference to two of the parties to the original note, and for the purpose of showing assent by them to the alteration, that they offered to confess a judgment on the notes now in suit, if I (the attorney) thought they could do it with safety, and I, knowing that said L and T had signed the note as sureties, and B being the principal, they could not confess judgment with safety to themselves; and it appeared that such admission was made to the attorney of the plaintiff in a former suit on the same note, by two of the parties who were sureties on the

note.

Held, That such admission was not competent evidence against them, because it was obviously addressed to the attorney in order to elicit a legal opinion from him touching the rights of the parties as between themselves, and is therefore entitled to the protection accorded to communications made to an attorney in professional confidence, and ought not to have been diselosed; and the facts that the admission was made to the attorney of the plaintiff and not of these parties, could make no difference, because if the attorney of their adversary would consent to act as their attorney, and advise them, the rule should still apply, whether the attorney was paid for his advice or not.-Bower's Adm'r v. Briggs, 139

10. In an action upon a note, against the principal and surety, by an endorsee, under an issue tendered by the surety, in his answer that the note was paid before its pretended endorsement to the plaintiff, it is competent for the surety to prove that the note was given for the debt of the principal to the payee, and that the principal called at the payee's house, and told him the note, (being secured by mortgage), was a lien on land then owned by his wife and children, and said if the payee would throw off about what it would cost to collect the note, he could have the money on it, which the payce agreed to do, and that he then paid the full amount of the note, less the amount thrown off, and the payee handed him the note, which he, soon after, handed back to the payee, and requested him to endorse it in writing to the plaintiff, which, after some objections, he did, upon his assurance that there should never be any trouble about it. Such testimony tended to show that the note was paid before endorsement, and at the time of endorsement was, therefore, functus officio.-Quarle v. Jones,

143

181

11. CRIMINAL LAW AND PRACTICE. 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 needs not to be specially pleaded.-Danneburg v. The State, 12. TESTIMONY OF EXPERTS.-It is error to instruct the jury that "on questions involving science and skill, the opinions of scientific men in professions or pursuits to which such questions may per

tain, are authoritative, and in all doubtful cases in which such questions are involved, should control the jury," for, as to such testimony, as well as any other, it is the peculiar province of the jury to determine its credibility and weight.-Humphries v. Johnson,

190

13. INSTRUCTIONS.-Where the issues in a cause are such as to render competent in evidence, an order drawn by one of the parties upon the other, requesting the latter to manufacture certain articles, and agreeing to pay for them at a specified rate, and such articles were manufactured and delivered, and their price became the consideration for the cause of action, and said order was offered in evidence, it was error for the Court to refuse to instruct the jury that such order is a fact tending to show the articles ordered to be made, and the contract between the parties.-Burson v. Choate,

258 14. 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.-Evans v. Elliott, 283

15. Where a married woman becomes the purchaser of real estate, but takes title, in the first instance, by bond to her husband, and, after the payment of the purchase money, takes a deed in her own name, and the property is alleged to be her husband's, and is attempted to be subjected to the payment of his debts, it is competent for her to give in evidence all the circumstances attending, and the reason for the taking of the bond in her husband's name, for the purpose of removing any inference which might arise therefrom prejudicial to her rights.-Howe v. Yopst,

409

16. PRACTICE.-Under the general plea of payment, in an action to revive a judgment, evidence of payment of the debt before the rendition of the judgment would not be admissable.-Kiser v. Wi

nans,

428

17. EVIDENCE.-Evidence not pertinent to the issues, as they stand at the time of trial, should not be received, nor should evidence be received which would be in contradiction of the pleadings of the party offering it.—Graydon v. Gaddis,

515

EXECUTION.

See CLERK, 3, 4, 1, 2; CONTRACT, 11; SHERIFF'S SALES, 4.

1. An execution may be issued during the term at which the judgment is rendered, upon the request of the judgment plaintiff, without motion, affidavit, or order of the Court.-Carpenter v. Vanscoten, 50

2. PROPERTY SUBJECT TO LEVY.-A was indebted to B in a certain sum, a small part of which B had agreed to pay to C, on account of money he owed him. B then gave Can order on A for the whole sum, and in payment thereof A gave Ca check on a bank. C presented the check at the bank, and the money was counted out to him and laid upon the counter of the bank. D, a sheriff, who was standing by, and had in his hands an execution against B, seized the money by virtue of said execution, as the property of B, before Chad time to take it up.

Held, That there was not at the time of the levy, such a title to said money in B, as would, previous to its delivery to him, enable the sheriff to seize it as his property.-Moorman v. Quick,

67

3. CLERK-DUTY OF.-Section 428, 2 R. S. 1852, p. 176, which provides that, at the expiration of the stay, it shall be the duty of the clerk to issue a joint execution against the property of all the judgment debtors, and the replevin-bail is merely directory as to the manner or form of the execution, and does not make it his duty to issue upon the expiration of the stay, without an order from the plaintiff or his attorney.-Nunemacher v. Ingle,

135

4. RETURN OF ORDER OF SALE.-Where a mortgage has been foreclosed, and the judgment replevied, and the period of stay having expired, and order of sale duly issued upon the decree, the return of that order of sale, by the direction of the plaintiff, without the disposition of the property therein described, can not operate as a discharge of the lien authorized by the mortgage, nor affect the rights of replevin-bail. Ibid.

EXECUTORS AND ADMINISTRATORS.

See PLEADING, 18.

1. 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

2. Held, 2. That the sale to the person acting as auctioneer, under the circumstances, was a sale to a third person and valid. Ibid. 3. 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. 1bid.

4. COSTS.-Where an administrator sues for the recovery of the possession of property of the estate, he shall not be liable for the costs of suit; but if, in such suit, the judgment for costs is a personal judgment against him, and fails to order that the costs shall be paid by him out of the assets of the estate, the same are collectable of him individually, although the judgment against him for costs was clearly erroneous. It was binding until properly corrected. The State, &c. v. Ritter,

EXEMPLARY DAMAGES.

406

1. In that class of wrongs, the commission of which subjects the of fender 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,

EXEMPTION FROM EXECUTION.

190

1. A, having a judgment against B, and B being insolvent, but the owner of an equitable interest in some land, instituted an action to subject that interest to his judgment. The Court, under the issues

on the trial, found that B owned personal property worth 97 dollars and 1 cent, and that he was entitled to 202 dollars and 99 cents, out of the value of his equitable interest in the land, to make the 300 dollars, to which he was entitled as exempt from execution, and that he then owed on the land 100 dollars to the grantor of it to him, which was a lien, and ordered the land to be sold, and the last named sum to be first paid, and then the 202 dollars and 99 cents, to B, out of the proceeds of the sale, and the residue to be applied on the plaintiff's judgment. The land was sold, and bought by the plaintiffs. They tendered the 100 dollars, but did not tender to B the 202 dollars and 99 cents, and in this condition of the matters the Court below ordered that the equitable estate should be conveyed in fee to the purchasers aforesaid.

Held, that, under the circumstances, this was error.-Smith v. Vanscoten, 221

EXEMPTION FROM TAXATION.

1. Land in Indiana, purchased of the United States at any time within five years next before May 31, 1852, is exempt from taxation for five years from the date of purchase, by reason of the provisions of section 5, p. 208, R. S. 1843.-Brooks v. The Board, &c., of Jasper Co.,

EXPERTS.

416

1. TESTIMONY OF EXPERTS.-It is error to instruct the jury, that "on questions involving science and skill, the opinions of scientific men in professions or pursuits to which such questions may pertain, are authoritative, and in all doubtful cases in which such questions are involved, should control the jury," for, as to such testimony, as well as any other, it is the peculiar province of the jury to determine its credibility and weight.-Humphries v. Johnson, 190

FORFEITURE.

1. The question as to the susceptibility of mortgaged premises to division, can only arise, where, in a proceeding for forfeiture, it becomes necessary for the Court to render judgment for the collection of installments, of which some are due and some not due.Denny v. Graeter, 20

2. In an action to foreclose a mortgage, where the owner of the equity of redemption is made a defendant, but judgment has been rendered against him and the mortgagor, without service of process on him, he is entitled, on his application therefor, showing merits, to have said judgment set aside and his defence heard.-Falls v. Evans, 210 3. Where several persons make a joint purchase of real estate, and execute joint notes and mortgage to secure the payment of the pur