1854.

May Term, no price is alleged. We have frequently held that this is a fatal defect, when the objection is taken at the proper time by motion to quash.

TYNER

V.

CORY.

Per Curiam.-The judgment is reversed. Cause remanded, with instructions to permit the district attorney to amend in accordance with this opinion (1).

W. F. Lane, for the appellant.

L. Reilly, for the state.

(1) The statute upon which the amendment was allowed, is as follows: "An information may be amended in matter of substance or form, at any time before the defendant pleads, without leave; and at any time after the defendant pleads, with leave of the Court. The information may be amended on the trial, as to all matters of form and variance, at the discretion of the Court, when the same can be done without prejudice to the rights of the defendant.” 2 R. S. 1852, p. 364.

Monday,
June 5.

TYNER V. CORY.

Trespass before a justice of the peace for killing a dog. Plea, in substance, that the dog was trespassing upon and injuring the wheat field of the defendant's father; and that, as the servant, &c., and because he could not otherwise prevent the dog from doing further injury, he killed him. Held, that the plea was bad.

The plaintiff, in a cause appealed from a justice of the peace, by withdrawing a demurrer sustained to a plea filed with the justice, did not, under the R. S. 1843, become liable for the costs of the cause from the time the demurrer was sustained.

APPEAL from the Fayette Circuit Court.

STUART, J.-Trespass by Tyner against Cory, before a justice of the peace, for killing a dog. Pleas, not guilty, license, and a plea of justification, the substance of which was, that the dog was trespassing upon and injuring the wheat field of defendant's father, and that, as the servant, &c., and because he could not otherwise prevent the dog from doing further injury, he killed him. Issues on the first and second pleas, and demurrer to the third, which was sustained by the justice. Trial on the other issues, and judgment for the plaintiff for 20 dollars.

1854.

OSBORN

V.

ΜΑΥ.

Cory appealed to the Circuit Court. There the demurrer May Term, to the third plea was overruled. A bill of exceptions shows, that the Court refused to permit the plaintiff to withdraw the demurrer and go to trial on the merits, except on the terms of paying all the costs accruing subsequent to sustaining the demurrer by the justice. On the plaintiff's refusal, the Court gave judgment in favor of the defendant on the demurrer, holding the plea a good bar to the action. This was erroneous. The plea is bad. Besides, the withdrawal of the demurrer was not such an amendment as to throw the costs on the plaintiff. R. S. 1843, p. 891, s. 171. Even had the plea been good, the plaintiff should have been permitted to withdraw his demurrer and proceed to trial on the merits. Whether, under the statute, the pleas were useless and might have been disregarded, we are not prepared to say. R. S. 1843, p. 870, s. 42. Nor does the case present that question.

Per Curiam.-The judgment is reversed with costs. Cause remanded, &c.

J. Ryman, for the appellant.

Osborn v. MAY and Others.

An entry of replevin bail, made after the expiration of the period allowed by law for the stay of execution, has not the force of a judgment, and will not support an execution.

APPEAL from the Fountain Circuit Court.

Per Curiam.-Motion to set aside an execution. Motion overruled.

The motion should have been granted. The execution was against a person as replevin bail. The judgment to which the entry of bail was made was, by law, subject to a stay of one hundred and eighty days. The entry of replevin bail was made after the expiration of that length of time from the rendition of the judgment, and was,

Monday,
June 5.

May Term, therefore, of no effect as a judgment, and would not support an execution.

1854.

Monday,
June 5.

SHERWOOD and Others v. ELSLOW.

After the money secured by a mortgage, which had been assigned, became due, the mortgagor delivered certain live stock to the assignee in payment, and the assignee delivered up the mortgage. The assignee, who resided in Michigan, started to drive the stock there, but before he had reached the border of this state, in which the mortgagor resided, the stock was levied and seized upon executions against the mortgagor, which were liens on the stock when it was delivered to the assignee. Upon a trial of the right of property, the property was held liable to the execution. Afterwards, the mortgagor paid off the executions, but never re-delivered or offered to redeliver the stock to the assignee. Held, that these facts did not show a payment of the mortgage.

APPEAL from the Steuben Circuit Court.

PERKINS, J.-Bill by an assignee to foreclose a mortgage. Answer averring payment. Proofs. Decree for the plaintiff below. The facts are as follows:

Elslow, the plaintiff in the bill, held a mortgage covering real estate, on one Nelson Earll. After it became due, payment was demanded, and Earll being without money, proposed to turn out certain articles of live stock in payment, which Elslow agreed to take and did take, giving up the mortgage. Elslow resided in Michigan, whither he started to return, driving his stock. Before he had reached the borders, the stock in question was levied on and taken by officers upon executions which had been in their hands against Earll for sometime, and were liens upon the stock. Elslow instituted a claim of property which was tried, and resulted in a decision that the property was subject to execution. Some two weeks afterwards, Earll, or some one

May Term, 1854.

HOOKER

for him, paid off the executions, and has since held the property, as he says, ready to be re-delivered to Elslow, but it has never been re-tendered. The question is, whether the foregoing facts show a payment of the mortgage, and RICHARDS. that Elslow is bound still to return and receive the stock in question, or get nothing.

We think no payment is shown. Elslow had a money demand against Earll. He agreed to accept certain specific articles of stock, which Earll held out as his own, in payment. It turned out that that stock was not Earll's, and, hence, he in fact gave Elslow nothing but a certain amount of trouble and expense, and there was no consideration for the surrender of the mortgage. When the stock in question was taken from Elslow and decided to be subject to Earll's debts, Elslow's claim to the payment of his mortgage in cash revived, so far that he had a right to assert it, if he chose, rather than attempt to secure the stock; and it has never since been superseded by any new agreement to accept any thing else.

The other parties to this suit are those who had purchased the land mortgaged from Earll before his pretended payment of the mortgage.

Per Curiam.-The decree is affirmed with costs.

R. Brackenridge, Jr., for the appellants.

J. B. Howe, for the appellee.

V.

HOOKER and Others v. RICHARDS, Administrator.

ERROR to the Clay Circuit Court.

DAVISON, J.-This judgment is affirmed, for the reasons given in Hooker v. Folsom, 4 Ind. R. 90, the facts of the two cases being similar.

Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs.

R. Brackenridge, Jr., for the plaintiffs.

D. Mc Donald, W. A. McKenzie, and W. Henderson, for the defendant.

Thursday, June 8.

May Term, 1854. SMITH

V.

STEWART.

Thursday, June 8.

BEAIRD V. THE UNITED STATES.

Where the record, in a cause commenced before a justice of the peace, does not disclose a cause of action, it will be presumed on error that none was filed. A trial without an issue is erroneous.

ERROR to the Fayette Circuit Court.

DAVISON, J.-The United States of America sued Beaird, late post-master at Brownsville, Indiana, before a justice of the peace, and obtained a judgment. Beaird appealed. In the Circuit Court, judgment was rendered for the plaintiff below.

The record before us does not disclose the cause of action, and we must presume that none was filed. There being no cause of action on file, there could be no issue in the case; and a trial without an issue is erroneous. Bell v. Trotter, 4 Blackf. 12.-Denby v. Hart, id. 13.-Wilbridge v. Case, 2 Ind. 36.

Per Curiam.-The judgment is reversed with costs. Cause remanded, &c.

J. A. Fay, for the plaintiff.

S. W. Parker, for the defendant.

Thursday,
June 8.

SMITH V. STEWART and Another.

When a bailee converts the thing bailed to his own use, the contract of bailment ceases, and the bailor, without any previous demand, may recover its value of the bailee, upon an implied promise to pay therefor.

A tender of performance of a parol award, and a refusal of the tender, are equivalent to a performance.

Arbitrators will be presumed to have decided in accordance with law, where there is no proof in relation to the proceedings had before them showing the contrary.

ERROR to the Vigo Circuit Court.

DAVISON, J.-Stewart and Mosely sued Smith in assumpsit, for goods sold and delivered, for money had and received, for money paid, and for one hundred and two barrels of salt