L に sent case, then before the Court on demurrer to the de- Black v. Wilson, 7 id. 532, is supposed to be in conflict It is next objected that the allegation in the declaration that the note was assigned at Lafayette, was not proved. If it was necessary that that allegation should be proved, we think it was sufficiently done. The note is dated at Lafayette. The assignments on it are not dated as of any place. The suit and judgment against the makers were at Lafayette. The suit against the indorser and service of process on him were at that place, and the testimony positively shows that several of the parties resided there. We think the presumption was raised that the indorsements were made at that place. At all events, the assignments were given in evidence on the trial, without objection to them particularly pointed out; and, at that time, the rule of decision was, that unless particular objections were specified, the case stood as if May Term, 1852. SPEAKS V. CLARK. May Term, 1852. SPEARS V. CLARK. no objection was made. This rule is decisive of the point. under consideration. The next point made is, that the insolvency of the makers was not sufficiently established. A return against said makers of no property, was made on the 24th of September, 1839, and this suit was commenced against the assignor on the 9th of March, 1843. It is contended that said makers should have been proved to be insolvent when this suit was commenced. We think the plaintiff in the Circuit Court, having shown that he had used due diligence by prosecuting the makers of the note to insolvency, was not bound to prove that they continued insolvent to the time of suing his assignor. Whether the assignor could have shown, in bar of the suit, that the makers had acquired property subsequently to the return against them of no property, we need not stop now to ascertain. The note, an indorsement of which is sued on, is as follows: "Lafayette, April 16, 1838. Seven months after date, I promise to pay to the order of George M. Marshall, five hundred dollars, for value received. Samuel Taylor, Taylor and Smith." The declaration avers that Samuel Taylor, and Taylor of the firm of Taylor and Smith, were one and the same person; and it is urged that that averment was not proved. If it was necessary, under the issue, that it should have been, we think it was done. The record of the suit and judgment at law against said Samuel Taylor and said Smith, charging them as being the persons who made the note, was in evidence; and Taylor himself was examined as a witness, and spoke, in his testimony, of Smith and himself, the defendants in said judgment, as the makers of the note, and mentioned no other person. This was sufficient. Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs. Z. Baird and J. M. Reynolds, for the appellant. R. A. Chandler, for the appellee. WEST V. CHASE. A purchaser of land, whose deed is to be made upon the payment of several notes given for the purchase-money, cannot maintain a bill, filed after all the notes have become due, to enforce the execution of the deed, without showing a payment of all the notes, or a proper offer to pay them, or something equivalent. A. contracted with B. to sell to sell to him a lot in Elkhart county, for a certain sum in potter's ware, for the payment of which sum five notes were given. The contract was made in said county, where B. resided; but A. then, and when this suit was brought, resided in Illinois. The first three notes were paid to A. when they became due. When the last two severally became due, B. set apart at his manufactory, in said county, where he carried on the business of manufacturing potter's ware, a sufficient quantity of potter's ware to pay them. He, afterwards, filed his bill to compel A. to execute to him a deed, but did not aver or prove a demand of the deed. Held, that by setting apart the potter's ware as stated, it became the property of A., and the notes were thereby paid. Held, also, that A.'s absence from the state was a sufficient excuse for B.'s not demanding a deed, had the demand been otherwise necessary. ERROR to the Elkhart Circuit Court. BLACKFORD, J.-This was a bill in chancery, filed in the Elkhart Circuit Court in August, 1844, by Chase against West. The bill states that West, on the 7th of December, 1842, contracted to sell to Chase lot No. 66, in Elkhart, for 250 dollars in potter's ware, for the payment of which sum five notes of 50 dollars each were given; that the note first due was payable on the 1st of March, 1843, and the one last due was payable on the 1st of March, 1844; that West was to make the deed by the 1st of March, 1843, by Chase's making him a mortgage to secure the notes. The bill further states that the three notes first due were paid; that when the other two fell due, the complainant had the ware ready to deliver in payment of them; that he has always been, and still is, ready to deliver the ware; that said ware, sufficient to discharge said two notes, was set apart and designated for the payment thereof, by the complainant, who was ready and willing to deliver the same to West, but no person came to receive May Term, 1852. WEST V. CHASE. Tuesday, May Term, it; and that he has said ware still ready to discharge 1852. said two notes whenever the same shall be called for. WEST V. CHASE. The bill further states that the complainant has been always ready to execute the mortgage upon West's conveying him the lot, but that West has refused to make the conveyance, notwithstanding the complainant has required him to do so, and has offered to pay him the residue of the purchase-money upon his making the convey ance. Prayer that West may be required to convey said lot to the complainant, and for general relief. The answer admits the execution of the contract and of the notes as stated in the bill. It also admits the payment of three of the notes as alleged in the bill. It denies that the complainant was always ready and willing to pay the two unpaid notes, or that he had the potter's ware ready. It alleges that when said two notes respectively became due, the defendant demanded payment of. the same, but the payment either in potter's ware or otherwise was refused. It denies that the complainant offered to execute the mortgage in case of the defendant's executing the conveyance for the lot. It denies that the complainant ever demanded a deed for the lot, and offered to pay the residue on the deed's being made. The cause was submitted to the Court on the bill, answer, exhibits, and depositions; and a decree was rendered for the complainant. This bill, not having been filed until all the notes fell due, the complainant could not have a decree for the lot without showing a payment of all the notes, or a proper offer to pay them, or something equivalent. It was proved that the contract in question was made in said Elkhart county, where the lot is situate, and where the complainant resided; that the defendant resided, when the contract was made, and up to 1846, in the state of Illinois; and that during the year 1844, the complainant carried on, in said Elkhart county, the business of making potter's ware. It was also proved that when the two notes in question respectively became due, the complainant set apart for the defendant, at a certain potter's ware shop in said county, potter's ware sufficient to discharge those notes. The only difficulty in the case is to determine, from the depositions, whether said shop was the place where the complainant carried on his said business. If it was, the ware set apart as aforesaid became the property of West, and the notes were paid. We have come to the conclusion, not however without some hesitation, that the complainant did carry on his said business at said shop. The consequence is, the complainant must be considered as having done all the law required, in order to perform his part of the contract. The defendant's absence from the state was a sufficient excuse for the complainant's not demanding a deed, had such demand been otherwise necessary. Per Curiam.-The decree is affirmed, with costs. J. Morrison and S. Major, for the defendant. May Term, 1852. SMITH V. SMITH. SMITH V. SMITH and Another. It is immaterial whether the motion to suppress a deposition was correctly overruled or not, if the deposition was not read at the trial. The party who, after an order for a change of venue, appears by attorney and submits the cause to a jury in the Court which granted the order, waives the right to remove the cause under the order previously made. ERROR to the Tippecanoe Circuit Court. BLACKFORD, J.-This was an action of indebitatus assumpsit brought by Dennison B. Smith and George S. Hazzard against Horace B. Smith. There are two countsone for goods sold and delivered, and the other for money had and received. Plea, non assumpsit. Verdict and judgment for the plaintiffs. The defendant's first objection to the judgment is, that Tuesday, |