V. LUCAS. ence on the purchaser. For the reasons given in the pre- Nov. Term, 1854. ceding case, it was error to admit them. The only other new element in this case to distinguish BISCHOF it from that, is the introduction of evidence to show that, after suit brought, the defendant had paid 40 dollars or so. This matter we conceive stands thus. The defendant having kept the cloth, neither returning nor offering to return it in a reasonable time, was bound to pay for it. In defence he could show a partial failure of consideration, on account of the inferior quality of the cloth. This defence grew out of the fact that, not being a judge of the article himself and not pretending to be, he confided in the representations of the payee of the note. He was, however, liable to the assignee for whatever the cloth was worth. If after suit brought he had paid the note or any part of it, he had a right to show that fact, not in bar, but in mitigation of damages. In the case of The Bank v. Brackett, 4 N. H. 557, the course of decision on this point is fully investigated, and it is held that payment after suit brought is admissible in evidence to reduce the damages. Numerous decisions are there cited to that effect. In Bischof v. Coffelt, the evidence in relation to the execution of the note warranted the jury in finding a verdict for the defendant. And the note being out of the way, the assignee could not recover on the common counts for the value of the cloth. Here the note is valid, subject only to the effect of a defence of partial failure of consideration. On the former, the evidence erroneously introduced could have had no influence. The verdict was right independent of it. On the latter the tendency was to mislead, and to excite prejudice. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. J. P. Usher, for the plaintiff. Nov. Term, 1854. DUNCAN V. DUNCAN. Thursday, DUNCAN and Others v. DUNCAN and Others. The act approved January 12, 1850, allowing causes which originated in the ERROR to the Fountain Circuit Court. Per Curiam.-Bill in chancery, filed in the Probate Court of Fountain county, by the defendants in error against the plaintiffs. The object of the suit was to contest the validity of a certain instrument, purporting to be the last will of one Joshua Duncan, deceased. The defendants below answered the bill; whereupon the Court directed an issue of devisavit vel non. That issue was submitted to a jury, and a verdict was given for the complainants. A decree was rendered in accordance with the verdict. The defendants below removed the cause, by writ of error, to the Fountain Circuit Court, which Court affirmed said decree. The record before us was issued on the 10th of November, 1852, and filed here on the 8th of April, 1853. It is contended that this Court has no jurisdiction of the case. An act approved January 12, 1850, allowed causes which originated in the Probate Courts, to be taken by appeal or writ of error from the Circuit Courts to the Supreme Court. Acts of 1850, p. 65. But when this record was issued and filed, the Probate Court was not in existence, nor was the act just cited in force. That Court had been superseded by a statute which was published and circulated throughout the state prior to the 1st day of October, 1852, entitled "An act to establish Courts of Common Pleas," &c. The latter act contains these provisions: Section 13. "An appeal shall lie from such Court of Common Pleas, in all cases, to the Circuit or Supreme Court, at the option of the party applying therefor." Section 43. "All laws and parts of laws contravening the provisions of this act, are hereby repealed from and after the 1st day of October, 1852." 2 R. S. 1852, pp. 18, 23. The above-quoted act of 1850 evidently contravened the former section, and was, therefore, repealed by the latter section. There was, then, D. Newell, for the plaintiffs. R. A. Chandler, for the defendants. Nov. Term, 1854. EBERT V. LUDLOW. EBERT and Another v. LUDLOW. If from the judgment of a justice of the peace against two defendants, one of them appealed to the Circuit Court, before the R. S. 1852 were in force, in his own name, without joining the other, the appeal could be dismissed on motion. APPEAL from the Dearborn Circuit Court. DAVISON, J.-Ludlow recovered a judgment against Ebert and Martin before a justice of the peace, from which Ebert appealed; and on the 29th of July, 1852, the justice's transcript, with the appeal bond and certain other papers in the cause, was filed in the Circuit Court. The plaintiff moved to dismiss the appeal on the ground that it was not taken by and in the name of both defendants. The Court sustained the motion, and the appeal was accordingly dismissed. The Court ruled correctly. In Kain v. Gradon, 6 Blackf. 138, it was held that "if from the judgment of a justice of the peace against several defendants, some of them appeal to the Circuit Court in their own names, without joining Thursday, Nov. Term, the others, the appeal should be dismissed on motion” (1). 1854. The judgment of the Circuit Court must be affirmed. Per Curiam.-The judgment is affirmed with costs. J. Ryman, for the defendant. (1) The R. S. 1852, in relation to appeals from justices' judgments, provide that when there are two or more plaintiffs or defendants, one or more of such plaintiffs or defendants may appeal, without joining the others in such appeal. 2 R. 9. 1852, p. 461, s. 64. WINEHART V. THE STATE. Ignorance of the law will not excuse a man from punishment on a criminal accusation. Thursday, December 14. APPEAL from the Putnam Circuit Court. PERKINS, J.-Indictment for keeping a gaming house. Conviction and fine in the Circuit Court. The question is on the weight of evidence. It is proved that the defendant kept a grocery store, in which he sold beer, cigars, &c.; and two witnesses testified that they had often played cards in an adjoining room in the house, for cigars, beer, &c.; that the defendant did not know it was wrong to permit such acts in his house, and whenever he learned it was so, he forbade them. Such prohibition is sometimes a trick. Besides, his ignorance of the law did not excuse him. We think a jury might infer the guilt of the defendant from the evidence. See McAlpin v. The State, 3 Ind. R. 567.-The State v. Staker, id. 570. Per Curiam.-The judgment is affirmed with costs. Nov. Term, ROGERS, Administrator, v. THE STATE. 1854. ROGERS V. Section 109, 2 R. S. 1852, p. 273, was not intended to give to the mortgage creditor a general lien against the estate of the mortgagor but to continue THE STATE. the mortgage, as to the mortgaged property, after the mortgagor's decease. Where the mortgagor was not seized of the property at the time of his death, the mortgagee has his choice, of following the property, or resorting to the estate for payment; but, in such case, if he seek payment from the estate, his claim will be classed with the "general debts." Section 9, pp. 51, 52, of the acts of 1853, which professes to amend section 109, p. 273, 2 R. S. 1852, is unconstitutional, for not setting forth the latter section at full length. APPEAL from the Allen Court of Common Pleas. HOVEY, J.-In April, 1840, Absalom Holcomb borrowed of the agent of the surplus revenue fund of Allen county, the sum of 200 dollars, and executed a mortgage on a certain tract of land to secure the payment. Holcomb died intestate and insolvent, and Rogers was appointed his administrator. At the January term, 1854, of the Court of Common Pleas of Allen county, the state, by her attorney, filed a petition showing the above facts, and prayed an order for the payment of her debt in full out of Holcomb's estate. The administrator answered the petition, and set up a sale and conveyance of the land in fee simple by Holcomb in his lifetime, and averred that at the time of his death, Holcomb had no interest or title in said land. The answer was demurred to, demurrer sustained, and an order made that the administrator should pay the amount of the claim in full. The petition and answer are both very defectively drawn, but we suppose the principal question in controversy is the construction of section 109, 2 R. S. 1852, p. 273, which provides that— "All claims against the estate of a decedent shall be paid in the following order: First. Expenses of administration. Second. Expenses of last sickness, and funeral expenses. Third. Judgments which are liens upon the decedent's real estate, and mortgages of real and personal property existing in his lifetime. Fourth. General Debts. Fifth. To legatees. Sixth. To distributees." It was not the intention of the general assembly, in Thursday, |