either by personal appearance or in writ-
ing.-Lindville v. The State,

580

2. After the act establishing Courts of Com-
mon Pleas took effect, but before the R.
S. 1852 went into force, a complaint for a
felony not punishable with death, con-
taining the substantial requisites pre-
scribed by the statute, was filed in the
Court of Common Pleas; but the complaint
was denominated in the body of it an
"information." Held, that the sufficien-
cy of the complaint was to be determined
by the act establishing the Court. Held,
also, that the name given to the com-
plaint did not change its legal effect.

COMPLAINT.

See COMMON Pleas, 2.

COMPROMISE.

Ibid.

1. Sections 22 and 23 of the 4th article of
the new constitution of Indiana, are to be
construed as operating prospectively.
The State v. Barbee,

258

2. The prisoner then moved for a continu-
ance in order to procure the testimony of
an absent witness; but the state admit-
ted that the witness would swear to the
facts alleged in the prisoner's affidavit,
but reserved the right to impeach her cre-
dibility. Held, that the motion was cor-
rectly overruled.
Ibid.
3. The prisoner then moved for a continu-
ance upon an affidavit stating that he
was informed that morning only that one
H. was to be introduced as a witness
against him, and that he had, until then,
believed that said H. was confined in jail
in Marion county, and, therefore, did not
deem it necessary to subpoena witnesses
to impeach his testimony, and that if the

1. Where one has entered into a special agree-
ment to perform work for another, and fur-
nish materials, and has done work and
furnished materials, but not in the man-
ner stipulated by the contract; or where
he has voluntarily abandoned the work
before its completion; yet if the work
done and the materials furnished are ac-
cepted and used by the other party, the
latter is answerable to the amount where-
by he is benefited, upon an implied pro-
mise to pay for the value he has received.
-McKinney v. Springer,

59

2. But such amount cannot exceed the price
which would have been allowed, under
the contract, for the same amount of work,
or quantity of materials, had the contract
been fulfilled.

Ibid.

3. The mode of ascertaining the real bene-
fit received from the part performance of
work, in cases like the present, is to esti-
mate the whole work at the price fixed
by the contract, and to deduct from that
the amount requisite to complete the part
of the work left unfinished. If any loss
is occasioned by the unfinished part cost-
ing more in proportion than the whole
was undertaken for, the loss must be borne
by the party who originally contracted to
do the whole. The amount to be allowed
may, in some cases, be less than the pro-
portion which the work done would bear
to the cost of the whole, but cannot ex-
ceed it.
Ibid.

4.

5.

It seems that the defendant may, in an
action of this kind, reduce the amount to
be recovered by showing that he sustained
special damage by reason of the non-per-
formance of the contract by the plaintiff,
or he may waive the recoupment of such
damages and bring a cross action to reco-
Ibid.
ver them.

Where an entire job of work was to be
done under a special contract, and the
compensation was to be, on its comple-
tion, the conveyance of a lot of ground,
and the workman, having done a part of
the work, abandoned the contract, but the

Ibid.

7. Where a party has sold and delivered
chattels, or performed labor for another,
under a special contract which he has
failed to complete, and such part perform-
ance has been a benefit to the party re-
ceiving it, which benefit he has retained
after the expiration of the time for com-
pleting the contract, an action on the
quantum calebat or quantum meruit may
be supported for the chattels delivered or
the work done.-Epperley v. Bailey,
8. In such a case, the defendant may prove,
by way of recoupment, whatever damages
he has sustained by reason of the non-ful-
fillment of the special contract; or he
may resort to a cross action to recover
them.
Ibid.

72

13. Where a mechanic undertakes to do a job
of work for a specific sum, within a time
appointed by contract, and, having done
a part, fails to complete the rest within
the time appointed, by reason of which
the employer is compelled to hire another
to complete it, the employer has the right,
if the hire of the mechanic last employed
exceeds the price agreed upon by the con-
tract for the same work, to deduct such
excess from the amount due, according to
the contract price, to the first mechanic,
for the work actually done by him.—Man-
ville v. McCoy,

14.

148

The employer has also the right, if the

work done under the contract was execu-
ted in an unworkmanlike manner, to have
the amount which it was worth less than
if done in a workmanlike manner, deduct-
ed from the contract price for the same
work.

Ibid.

18. A judgment was rendered by a justice
of the peace, while the statute of 1838
was in force, by the consent of the de-
fendant, bearing 10 per cent. interest.
Held, that this was not a valid contract
under that statute for the payment of that
rate of interest.-Berry v. Makepeace, 154
19. A son-in-law, living with the parents of

his wife, cannot recover for occasional
services performed in that capacity, with-
out proof of an express contract that they
were to be paid for.-Oxford, Administra-
tor, v. McFarland,

156

20. A plaintiff cannot recover upon a spe-

CONVEYANCE.

484

See ACKNOWLEDGMENT. DOWER, 4, 5, 6, 7. HUSBAND AND WIFE, 1, 2. POSSESSION. POWER OF ATTORNEY. SPECIFIC PERFORMANCE, 1. VENDOR AND PURCHASER, 22.

1. A deed of conveyance was as follows: "This indenture, &c., witnesseth, that M. H., in consideration of, &c., paid, &c., by L. K., hath granted, bargained, sold, and conveyed, and, by these presents, doth grant, bargain, sell, and convey unto the said L. K., the free privilege to enter upon a certain tract or piece of land claimed, owned, and held by the said H., being, &c., (describing it,) and to dig a race, a mill-pit, and tail-race, to the creek; to erect a saw-mill and occupy the same forever; and, likewise, to cut and remove any timber that may be in the way of digging, building, and occupying said mill; the said L. K. not committing any unnecessary waste of timber on said land belonging to said H., and said K. to commence and finish said mill as soon as practicable; and the said M. H. doth hereby bind himself, his heirs, &c., to ratify and confirm to the said L. K., his heirs, and assigns forever, the aforesaid privilege to enter on said land, to dig, build, and occupy as aforesaid forever, and to hold the same for his own proper use and behoof, free from rents or any

Held, that

tain covenants of warranty. the part of the deed above recited conveyed the mill-privilege and premises described therein, to K. and his heirs, in fee96 simple.-Kenworthy v. Tullis et al., The clause recited, saying, the said M. H. doth hereby bind himself, his heirs," &c., "to ratify and confirm to the said L. K., his heirs, and assigns, the aforesaid privilege," &c., does not appear to have been intended to operate as a covenant, but to constitute a part of what, in a more formally drawn instrument, would be called the habendum and tenendum. Ibid. 3. The thing, and the estate granted by a deed, may be granted either by words contained in the premises, or in the habendum and tenendum. Ibid.

4.

An instrument purporting to convey land in this state, in order to be effectual, must be executed according to our law.-But203 terfield et al. v. Beall,

5. A deed made by an attorney under a power executed by his principals (valid as to the husbands who executed the same but invalid as to their wives,) was as follows: This indenture made, &c., between A. B., of, &c., attorney in fact for C. D. and E. D., his wife, and F. G. and E. G., his wife, parties of the first part, and J. K., of, &c., of the second part, witnesseth, that the said A. B., party of the first part, in consideration of, &c., to the said party of the first part by the said party of the second part in hand paid, &c., hath granted, bargained, and sold, &c., unto the said party of the second part, all the following described piece or parcel of land, (describing it,) being in the county of Ripley and state of Indiana, &c. To have and to hold, &c. And the said party of the first part, his heirs, executors, and administrators the aforesaid tract, &c., to the said J. K., his heirs, &c., will forever warrant and defend. In witness whereof the said A. B., attorney, hath hereunto set their hands and seals the day and year, &c. C. D., [seal]. E. D., [seal]. F. G., [seal]. E. G., [seal]. By A. B., [scal], their attorney in fact. The deed was attested by two witnesses, and the justice before whom the acknowledgment was taken, certified that A. B., "attorney aforesaid," personally appeared before him, and acknowledged the foregoing instrument of writing to be his voluntary act and deed." Held, that the deed of the attorney was sufficient to convey the estates of the husbands. Ibid.

CO-PARCENERS.