May Term, 1852.

PRATHER

V.

the said State Bank, for the use of her branch at Madison, obtained a judgment against said Prather, Walker, Vawter, and Andrews, for 548 dollars and 62 cents, and costs; that on the 20th day of January, 1842, a fi. fa. was issued STATE Bank. on said judgment and placed in the hands of the proper sheriff; that on the 26th of February following, and while said execution was in the hands of the sheriff, said Prather paid the amount of said judgment to said John Walker, a co-defendant therein, and the clerk of said Jennings Circuit Court, in manner specified in the following exhibit, to-wit":

“I, Hiram Prather, have this day paid to John Walker, clerk of the Jennings Circuit Court, five hundred and eighty dollars and six cents, the amount of a judgment and interest against me in favor of the State Bank of Indiana-one hundred and twenty-five dollars in state bank paper and the balance in treasury notes. I do bind myself to make the amount bankable and to keep the said Walker harmless. February 26, 1842. Hiram Prather."

The clerk executed to Prather this receipt, viz.:

"In the Jennings Circuit Court. State Bank of Indiana v. John Walker, Achilles Vauter, Hiram Prather, and Alanson Andrews. Assumpsit. Received of Hiram Prather five hundred and eighty dollars and six cents, the full amount of the above judgment and interest, costs excepted, this 26th February, 1842. John Walker, clerk.”

Said clerk also made the following entry under the judgment: "The above judgment is paid off, costs excepted. February 26, 1842. $580.06."

Prather subsequently paid the costs.

Soon after receiving said paper from Prather, Walker forwarded it, by John Lodge, a conductor on the Madison railroad, to the branch bank at Madison. On its delivery to the bank, the cashier wrote to said Walker as follows:

"Madison, March 1st, 1842. Sir: We received yesterday, by Mr. Lodge, the package of scrip and Indiana notes. I think Mr. Prather ought not to expect us to take those notes at par. They are now at a discount of 25

May Term, 1852. PRATHER

per cent. To get bankable money we will have to lose that. I will be willing to lose a part, but Mr. Prather ought also to lose a part. You know that we lent him STATE BANK. bankable money, at six per cent. interest, which he pledged himself to pay to us without renewal; but he failed, and we have had to employ attorneys at a loss of five per cent. to us; so that I really think he ought to lose a part. Please write to me on the subject as soon as you can. Very respectfully, J. F. D. Lanier."

The date and contents of the response to this letter do not appear, but it seems that in the course of a couple of months, Walker wrote requesting a receipt for the paper as a satisfaction of the judgment; in answer to which, Mr. Lanier immediately replied that it would not be so received, and returned the package. Walker, instead of redelivering it to Prather, subsequently appropriated it to his own use.

Nothing further appears to have been done till 1845, when the bank at first brought suit on the official bond of Walker, the clerk, but afterwards dismissed it and procured a new execution on the judgment against Prather and his co-defendants, whereupon this bill for an injunction was filed. Walker is insolvent.

Admitting, (without deciding.) for the purposes of this case, that the clerk possessed the same authority in regard to it as though he had personally no interest in the cause; and that he had the right to receive payment of the judgment while an execution was in the hands of the proper officer for its collection, still he had not, as clerk, the power to receive payment of said judgment in anything but gold and silver, without a previous authority from the plaintiff to do so. No clerk, nor sheriff, nor constable, as such, has a right, under the constitution and law, to receive payment of a judgment in anything but the legal currency of the country. Griffin v. Thompson, 2 How. U. S. Rep. 244.McFarland v. Gwinn, 3 id. 717. No previous authority to receive paper is pretended to have been given in this case. The transaction, therefore, between Prather and

1852.

PRATHER

V.

Walker, by which the former delivered to the latter an May Term, amount of bank notes and scrip nominally equal to the amount of the judgment, was not a payment of said judgment. But though there was no payment at the STATE BANK. time, still, the bank may have ratified the act of the clerk afterwards and accepted the paper in payment. This ratification may have been express, or it may be implied from circumstances.

We must inquire whether it has taken place. There has been no express acceptance of the paper. On the contrary, there was an express refusal to unconditionally accept it when sent to the bank; and a conditional acceptance, the condition not being afterwards assented to by one party nor waived by the other, amounts to no acceptance. And there was afterwards an absolute refusal to accept when the paper was returned. There is no circumstance from which an acceptance can be implied except the delay of the bank in returning the paper. The record does not fix the period of this delay, but the plaintiff claims it to have been two months. Admit it, and we think no negligence imputable to the bank. Prather had delivered to Walker that which he knew was not a legal tender in payment of the judgment, with the view of having Walker, as his agent, procure the acceptance of it by the plaintiff in payment. Walker sent the thing delivered to the bank, but gave no direction as to the disposition to be made of it in case of a refusal by the bank to accept it. It was his duty to have given such direction. He could not require the bank to send back the paper, which she had never asked to be sent to her, at her own risk; and the bank would not, perhaps, have been justified, in the absence of instructions, in sending it back at the risk of Walker. On her refusal to accept the paper, therefore, she would properly suffer it to remain in her custody till it was called for by him. And it was the duty of Prather to look to the conduct of his agent, and see that the business was properly transacted; for, as we have said, Walker had not the power to receive this paper, as clerk, in payment of the judgment, and, hence

V.

May Term, could only receive it as the agent or depository of Pra1852. ther. If Prather has been negligent, as is evidently the MANCHESTER case, in calling his agent to account, he must suffer the DODDRIDGE. Consequence. The bank, immediately on the paper being left with her, notified Walker that it would not be accepted at par, and requested his further direction. She returned the deposit as soon, perhaps sooner, than she was required to.

We think the bill was rightly dismissed.

Per Curiam.-The decree is affirmed, with costs.
J. G. Marshall, for the appellant.

S. C. Stevens, for the appellee.

MANCHESTER and Another v. DODDRIDGE.

In disseizin, the statute of limitations in force when the suit was com menced and tried, governs the case.

A person in possession of land, with the consent of the owner, under a contract of purchase which is not completed, is a mere tenant at will. Such tenancy determines by the death of the lessor.

The possession of one co-parcener, eo nomine, as co-parcener, is the pos-
session of the others.

To establish an ouster, proof of an actual ouster is not necessary.
A. died in 1822, seized in fee of a tract of land in this state, leaving B.,
his son, and C. and D., the children of a deceased daughter, and others,
his heirs at law. B. was, at that time, in possession of the land as a
tenant at will. He continued in possession afterwards, claiming the
land under the last will of A., which turned out to be invalid, and made
lasting and valuable improvements on the premises, under a constant
claim of exclusive title, until his death, which occurred in 1841; after
which his widow continued in possession of the land, it having been
assigned to her in 1845 as her dower. The possession of B. and his
widow had been quiet and undisturbed. C. was born in December, 1806,
and D. in December, 1810, and they brought this suit against the widow
of B. in August, 1847, for certain undivided shares of the land, as repre-
sentatives of their mother. Held, that, under this state of facts, the
jury was authorized to presume an adverse possession by B. of suffi-
cient length, under the statute of 1846, to bar the action.

The verdict of a jury will not be disturbed on account of improper evi-
dence having been admitted, if the other evidence admitted was suffi-
cient to justify it.

Where the verdict is right, according to the evidence, it will not be exa- May Term, mined whether the instructions given to the jury were correct.

ERROR to the Wayne Circuit Court.

1852. MANCHESTER

V.

BLACKFORD, J.-The plaintiffs in error brought an action of disseizin against the defendant in error for cer- Friday, tain undivided shares of real estate in Wayne county. May 28. The suit was commenced in August, 1847.

Pleas-1st, not guilty; 2dly, the cause of action accrued more than twenty years next before the commencement of the suit.

Verdict and judgment for the defendant.

The facts relative to the plaintiffs' title are as follows: The land in controversy originally belonged to one Philip Doddridge. He had, among other children, one daughter, named Nancy, who, in 1806, married one Benjamin Manchester. The plaintiffs are two of the children of that marriage. One of the plaintiffs, James, was born in December, 1806, and the other, Isaac, was born in December, 1810. The said Nancy, mother of the plaintiffs, died in April, 1813. The said Philip, grandfather of the plaintiffs, died in 1822. He, said Philip, at the time of his death, resided on the land, having the legal title to the

same.

There can be no doubt of the plaintiffs' right, as heirs at law of Philip Doddridge, to recover in this suit, unless they are barred by lapse of time.

The facts relative to the defense of the statute of limitations are as follows:

Previously to 1818 (the precise time is not shown) said Philip Doddridge, being the owner and occupier of said land, made a verbal bargain respecting it with his son John. By that bargain, John let his father have other property in exchange for said land. In pursuance of that bargain, John removed to said land; he and his father occupying separate cabins on the same until his father's death.

The said Philip Doddridge left a last will, by which he devised said land to said John; but the devise was not valid, the will being attested by only one witness. There VOL. III.-46