A.

ADMINISTRATOR.

See EXECUTORS AND ADMINISTRATORS.

ADVERSE POSSESSION.

See VENDOR AND PURCHASER, 4 to 8.

execution of the supersedeas bond. Held,
that the amendment did not discharge the
sureties in the bond.-Sherry et al. v. The
State Bank,
397

ANIMALS, DOMESTIC.
See RAILROAD COMPANY, 5 to 7.

APPEAL.

See CONTEMPT, 1, 2. COSTS, 3, 5. COURT
OF COMMON PLEAS, 1. ERROR, 1. REPLE-
VIN, 1. STATUTES, 8.

1. 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.-Ebert et al. v.
Ludlow,
29

2. In an appeal to the Supreme Court, under
the R. S. 1843, in the case of several de-
fendants, all were required to join, or, on
the refusal of any to do so, they were re-
quired to be summoned and severed.-Kirby
et al. v. Holmes et ux.,

33

APPRAISEMENT.
See EXECUTION, 2, 4.

APPRENTICE.
See CONTRACT, 4.

ASSAULT AND BATTERY.

BILL OF EXCEPTIONS.
See APPEAL, 5. EVIDENCE, 15. EXHIBIT,
1, 3, 4. PLEADING, 38. PRACTICE, 16, 17.
1. When the bill of exceptions states the or-
der of events differently from the other por-
tions of the transcript, the bill of exceptions
will be taken as true.-The State v. Flemons,
279

ASSESSMENT OF DAMAGES.

82

See PLEADING, 31. PRACTICE, 5. REPLE-
VIN, 2.

ATTORNEY.

See CONSTITUTIONAL LAW, 1. STATUTES, 5.
1. A county is liable, ex necessitate, for the
value of the services of an attorney ap-
pointed by the Circuit Court to defend a
poor person on a criminal accusation; but
the Circuit Court can not fix the measure
of compensation.-Webb v. Baird, 13
2. An attorney at law to whom a note is sent
for collection, has no authority, merely as
an attorney, to transfer the property in it to
a third person.-Russell v. Drummond, 216

B.

BAGGAGE.

See CARRIERS.

BAILMENT.

See CARRIERS.

Suit against the proprietor of a steamboat for
negligence in towing a flat-boat, by which
the cargo of the flat-boat was sunk and
greatly damaged. There was evidence tend-
ing to show that the flat-boat had been un-
skilfully loaded, so as to render the towing
more hazardous; but that the defendant
was apprised of the fact, and that the im-
mediate cause of the injury was the gross
carelessness of the defendant, in towing the
boat at an improper speed. It was also
shown that the plaintiffs agreed in writing
that the flat-boat should be towed at their
risk.

Held, that, without the writing, the defen-
dants were liable for the injury.

Held, also, that the writing did not exempt
the defendants from liability for gross negli-
gence.-Wright v. Gaff et al.,

BASTARD.

See PARENT AND CHILD, 5, 6.

416

66

A bill of exceptions in a cause tried prior
to June 1, 1853, after setting out certain
evidence adduced in chief by the plaintiff,
stated, upon this evidence the plaintiff
rested his case." Certain evidence adduced
by the defendant was then set out, and the
bill stated, "upon this evidence the defen-
dant rested his defence." The bill then set
out certain other evidence adduced by the
plaintiffs, and stated, "this rebutting testi-
mony closed the evidence in the case."
Held, that it sufficiently appeared that the
bill contained all the evidence given at the
trial.-McClure v. Pursell,
330

3. In every bill of exceptions purporting to
set out the evidence on motion for a new
trial overruled, the words "this was all the
evidence given in the cause," are, by a rule
of the Supreme Court, to be regarded as
technical, and indispensable to repel the
presumption of other evidence.-Meeker et
al. v. Patty et al.,

467

4. In a bill of exceptions taken in a cause
tried before rule 30 of the Supreme Court
took effect, there was no statement that the
bill contained all the evidence given at the
trial. Held, nevertheless, that the objection
that the verdict was contrary to the evidence
could not be noticed.-Ausem v. Byrd, 475

BILL OF EXCHANGE.

See SURETY.

The secretary of a private corporation drew a
draft upon the treasurer for the payment of
a certain sum for work done by the drawee;
but the draft did not specify when it should
be payable.

Held, that it could not draw interest till
there was a demand on the treasurer and a
refusal of payment.

Held, also, that the circumstance that the
drawee had been told by a person connected
with the corporation, but not with the trea-
sury department, that there were no funds
on hand, did not dispense with the necessity
of such demand.-English v. The Board of
Trustees, &c.,

BILL OF REVIEW.

437

To a bill of review, as a general rule, the same
persons should be made parties who were
parties to the proceeding sought to be re-
viewed; but they may be made complainants

See AMENDMENT. PLEADING, 8, 9, 30 to 32. SUPERSEDEAS BOND.

The language of a bond was as follows: "We or either of us promise to pay the state of Indiana, for the use of the surplus revenue fund," &c., "on or before the 23d day of January, 1846, 100 dollars, with interest thereon at the rate of 7 per cent. per annum, payable in advance, commencing even date herewith, and do agree that in case of a failure to pay any instalment of interest, the said principal sum shall become due and collectable, together with all arrears of interest; and on failure to pay the principal or interest when due, 5 per cent. damages on the whole sum due shall be collected and costs. In testimony," &c. Held, that it plainly appeared that though the bond was to be due one year from date, yet that it was the intention of the parties that further time might be given upon payment of the annual interest.-Shook v. The Board of Commissioners, &c., 461

1. Suit by A. against B., the proprietor of a canal-boat, to recover the value of a carpetbag and its contents, alleged to have been lost by A. while in B.'s possession as a common carrier. The facts of the case were as follows: A., on his return journey from California, went aboard B.'s packet-boat at Fort-Wayne, on the Wabash and Erie canal, taking with him his carpet-bag, containing certain articles of clothing, &c., and near 4,000 dollars in gold. He paid his fare, simply as a passenger, to Lagro, another point on the canal, and deposited his carpetbag, with the luggage of other passengers, on the deck of the boat, which was generally used for that purpose. On arriving at Lagro, the carpet-bag was missing, and it was afterwards found in the canal. The gold and clothing had been abstracted, and the circumstances showed that they had been

2.

A.

stolen. There was, also, evidence tending strongly to show that they had been stolen by one of the defendant's boatmen. made no communication to any officer of the boat, during the passage, as to the contents of the carpet-bag. The boat was provided with a small safe, and there was evidence tending to show that passengers were notified to have articles of value placed in it or keep them at their own risk; but on this point the evidence was very conflicting. The boat was in the habit of carrying articles of freight, but did not book or check baggage. The affidavit of A. was admitted on the trial to prove the contents of the carpet-bag; and there was a verdict and judgment for the amount of the gold, as well as of the clothing, &c.

Held, that the delivery by A. was, as to the carpet-bag and the articles of ordinary baggage it contained, sufficient.

Held, also, that B. was liable for the value of the ordinary articles of baggage, but not for the gold.

Held, also, that 4.'s affidavit, so far as it related to the ordinary articles of baggage, was properly admitted.-Doyle v. Kiser, 242 Common carriers of passengers are not liable for articles of value not transported to supply any wants of the traveler, as such, on his journey, and not made known to the carriers or their agents, nor paid for as freight, but put aboard the conveyance by the passenger simply as baggage and so treated by himself on the journey. Ibid. 3. Articles treated as baggage may consist of clothing, money for defraying traveling expenses, a few books for the amusement of reading, a watch, a lady's jewelry for dressing, &c.

See BILL OF

CERTIORARI. See COSTS, 4. CHANCERY.

Ibid.

REVIEW. CONTRACT IN RESTRAINT OF TRADE, 6, 7. COSTS, 2. DIVORCE. ESTOPPEL, 1, 2. EXHIBIT. FAMILY SETTLEMENT. FORECLOSURE. FRAUDULENT CONVEYANCE. INFANT, 7. INJUNCTION. SPECIFIC PERFORMANCE. TIME, 1. VEndor and PurCHASER, 1, 9. 1. A defendant in chancery can not object, on error, that other parties were improperly made co-defendants, when he has not been injured thereby.-English et al. v. Roche et al.,

2.

62

By the chancery practice, if affirmative matter in an answer which is made a cross bill, is not denied either by a replication or an answer to it as a cross bill, it is taken as true.-Hale et al. v. Plummer et al.,

121

3. That a party has mistaken or been misadvised as to his rights, and so failed to set up

5. When a party to a contract places a known trust and confidence in the other party, in a mixed question of law and fact, and acts on his opinion, and the party in whom such trust was reposed misleads him, equity will relieve.-Peter v. Wright et al., 183

6. Where, in chancery, the prayer of the bill was that the answer should be without oath, an answer under oath had no other effect than as if without oath. Ibid.

7. Where the answer was required to be without oath, a preponderance of testimony in support of the bill was sufficient. Ibid.

8. Same point decided.-Moore et al. v. McClintock,

209

9. A decree against an infant defendant, without proof, is erroneous.-Driver et al. v. Driver,

286

14. Bill in chancery under the R. S. 1843. Some of the defendants were notified of the pendency of the suit, as non-residents, by publication, and a decree was taken against them by default. No affidavit of their nonresidence was made. A guardian ad litem was appointed for other defendants, who were minors, and a decree was taken against them; but it was not shown that they had any notice of the suit, by service of process or otherwise. Held, that the Court had not acquired jurisdiction of the persons of the defendants mentioned, and that the decree against them was, consequently, erroneous.-Peoples et al. v. Stanley, 410

15. A Court of equity can not appropriate choses in action of a debtor to the payment of a demand of a creditor. Ibid.

16. Error in matter of form, although apparent on the face of a decree, is not a sufficient ground for reversing it.-Foote et al. v. Lefavour et al.,

473

17. The record of a suit in chancery stated that the cause was set down for hearing upon bill, answers and depositions. A writing under seal upon which the bill was founded was copied in the bill and also made an exhibit. The record also showed that it had been proved. Held, that the omission to state that the cause was set down on the exhibit as well as the bill, &e., was a mere omission in a matter of form. Toad.

A

CHOSES IN ACTION.
See CHANCERY, 4, 15.

CLERK OF THE CIRCUIT COURT.
See CONSTITUTIONAL LAW, 7, 8.

COLOR OF TITLE.

See VENDOR AND PURCHASER, 4 to 8.
CONFESSION OF JUDGMENT.

power of attorney purported to authorize a confession of judgment in the Circuit Court, in favor of the payee, "for the amount of the principal and interest that" might "be due on four certain promissory notes given by" the debtor. A judgment was taken by confession of the attorney, for a sum which, the record stated, was the full amount of the principal and interest due, at the taking of judgment, on the four notes specified in the warrant; but the notes were not shown, by any extrinsic testimony, to be the same notes therein referred to. The defendant having taken an appeal, the clerk certified in the transcript that four notes, which he copied therein, were placed on file in his office when the warrant was filed, and that upon them the judgment was rendered.

Held, that the warrant did not sufficiently identify the notes to athorize the judgment.

Held, also, that the certificate of the clerk, in relation to the filing of the notes and that the judgment was rendered thereon, was no part of the record.

Held, also, that the defect in the proceedings was not cured by s. 580, p. 162, 2 R. S. 1852.-Veach v. Pierce,

CONSIDERATION.

48

See CONTRACT IN REstraint of TraDE, 4. PARENT AND CHILD, 6. PROMISE. STATUTE OF FRAUDS, 5.

1. If A., being indebted to B., puts in the hands of C. promissory notes, or other securities, with a request that C. shall deliver them, or pay the proceeds thereof, or a sum of money less than the value thereof, as the case may be, to B., and C. promises B. that he will do so, the promise is founded upon a consideration.-Miller v. Upton,

53

13

3. The school law of 1852, so far as it diverts the proceeds of the sale of the sixteenth section in the several congressional townships from the use of schools in such townships respectively to the use of the school system of the state at large, is in contravention of section 7 of article 8 of the constitution.— The State v. Springfield Township, &c., 83 4. The city of Richmond was incorporated by an act approved February 24, 1840, the 15th section of which gave the mayor, in civil and criminal cases, the jurisdiction of a justice of the peace, and the 46th section of which provided for the recovery of a penalty for the violation of any ordinance, by-law or police regulation, in an action of debt. This act was amended by an act of 1851, which declares the sale of spirituous liquors in any quantity in said city, except for the necessary uses in the arts, &c., to be unlawful; and the common council is authorized to carry out the provisions of said act, and to provide for the recovery of a penalty not exceeding, &c., for any offence. The second section gave the mayor exclusive jurisdiction of all offences committed under said act and the by-laws passed in pursuance thereof, the penalties for which were to be recovered in the manner provided in the act of incorporation. The common council passed an ordinance, pursuant to the provisions of said act, giving a penalty not exceeding, &c., for each offence, to be recovered in the manner prescribed by the charter. Held, that the action for the penalty for selling spirituous VOL. VI-36

8.

436

Section 7, of chapter 115, 1 R. S. 1852, p. 512, so far as it assumes to regulate or abridge the term of office of persons elected to the office of clerk of the Circuit Court, where vacancies have occurred, is in conflict with the provisions of the constitution Ibid. on that subject, and void.

9. So much of the act "to prohibit the manufacture and sale of spirituous and intoxicating liquors," &c., approved February 16, 1855, as is prohibitory of the right to manufacture such liquors, and also so much thereof as relates to the establishment of agencies and the appointment of agents to sell such liquors, is unconstitutional and void.-Beebe v. The State,

CONTEMPT.

501