27. In a suit brought upon a note by the assignee of an administrator, a plea alleging that the right of the administrator to make the assignment had ceased before he made it, is a special plea of non-assignment, and must, under the R. S. 1843, be verified by oath.--Thomas v. Reister, Administrator, 369

28. When the general issue and a special plea are filed to the action, and the matter alleged in the special plea is admissible under the general issue, the defendant cannot complain that a demurrer to the special plea was improperly sustain

ed.

Ibid.

29. The omission of a similiter to the general issue is immaterial after verdict.Templin v. Krahn, 373

30. To a suit by the payee against A. and B., the makers, upon a promissory note payable at a day specified, the defendant pleaded the following pleas in bar: 1. A parol contract, entered into between the parties, when the note was made, by which the plaintiff was never to sue on the note; 2. That, after the execution of the note by A., to-wit, &c., a parol agreement was made by the parties that if B. would sign the note as surety, the plaintiff would never sue on the note, but would receive the interest thereon, unless A. should deny the note and not try to pay the same. Averment, that the interest had been paid, and that A. had never denied the note. General demurrer to both pleas. Held, that the first plea was insufficient. Held, also, that, supposing that the second plea had also showed that B. at the time of said parol agreement, or afterward and in pursuance of it, had executed the note, still it would have been insufficient. Held, also, that if said second plea did not show

31. In a declaration upon a note, the day on which the note is alleged to have been executed is not traversable. Ibid.

32. A special plea of set-off which professes to answer the whole declaration, but answers only a part, is bad on general demurrer.-Conklin v. Waltz, 396

33. Trespass quare clausum fregit. Plea, liberum tenementum. Replication, by way of new assignment, as follows: That the piece of land in the declaration mentioned was and is a certain close, situate, &c., and bounded as follows: (the boundaries are here set out); that said close now is and at said time when, &c., was in the lawful and peaceable possession of the plaintiff; which said close now is, and, at said time when, &c., was another and different close from the said close in the said plea mentioned and therein alleged to be the soil and freehold of the defendant. Verification. Held, that the new assignment was sufficient.-Halsey v. Matthews, 404

34. In replevin, damages cannot be assessed

beyond the amount claimed in the declaration.-O'Neal v. Wade,

410

39. A declaration founded on a written in-
strument, though the instrument is with-
out date, should allege a day, month, and
year, as the time of its execution; and if
the allegation is omitted, the declaration
is bad on special demurrer.-Givan v.
Swadley,
484

40. Debt upon a promissory note for 70 dol-
lars. The defendants pleaded, that the
plaintiff had previously purchased a print-
ing-office and fixtures of A. and B. at a
price specified, and had given them a
mortgage to secure the purchase-money;
that, on the same day, the plaintiff sold
the printing-office, &c., to the defendants
for 70 dollars, and took their note there-
for, being that sued on, and that the de-
fendants were to have the privilege of
purchasing the claim of A. and B. upon
such terms as they could, and if they
should make the purchase so as to release
the plaintiff from any liability to A. and
B., the defendants were to have the own-
ership upon paying the plaintiff the
amount specified in said note; but if they
should not make the purchase, they were
to pay said sum of 70 dollars for the use
of the property a year, during which time
the plaintiff agreed to assure the posses-
sion of it. The plea then averred that the
defendants had purchased the claim of A. [
and B. and procured the plaintiff's release
from all claims of A. and B. for the pur-
chase-money, whereby they became in-
vested with the entire property in the
printing-office, &c., and so the considera-
tion of the note had failed. Held, that
the facts showed no failure of considera-
tion, and that the plea was bad.-Howell
v. Lemon et al.,
41. If a plea of license answers the grava-
men of the declaration, proof of the li-
cense will defeat the suit.-Conklin v. The
White Water Valley Canal Company, 506
42. Suit upon an administrator's bond given
for the faithful application of the proceeds
of real estate of the intestate which the
administrator had procured an order to
sell. Plea, nil debet, and issue on the plea.
Held, that the plea was not a nullity.
Held, also, that it was incumbent upon
the relator, under the issue, to prove all
the material averments in the declaration
except the execution of the bond.-Kirk-
patrick v. The State ex rel. Kirkpatrick,

492

521

43. Debt upon an appeal-bond. The condi-
tion of the bond was as follows: That

whereas M. had, on the day of executing
the bond, obtained an appeal from the
judgment of the Hendricks Circuit Court
on said day rendered against him in a
case wherein John Doe, on the demise,

&c., was plaintiff, and said M. was de-
fendant; now should said M. duly prose-
cute his said appeal and pay any judg
ment or costs which might be rendered
or affirmed against him, then the bond
was to be void. The first breach assigned
was, that said M. did not duly prosecute
his appeal from the judgment of said
Court in said suit, &c., against him, ac-
cording to the condition of said bond, but
therein wholly failed. Held, that the
breach was bad. The second breach, af-
ter alleging, as in the first, that the ap-
peal had not been duly prosecuted, aver-
red that the appeal was dismissed by the
Supreme Court, on, &c., whereby the plain-
tiff was kept out of the occupation of 160
acres of land, the rent of which was
worth, &c. Held, that the plaintiff's claim
for rents and profits was not provided for
by the condition of the bond, and that
the breach was bad. The third breach,
after alleging, as in the first, that the ap-
peal-bond had not been duly prosecuted,
averred that the appellant had not paid
the judgment and costs which were ad-
judged against him on, &c., by the Su-
preme Court for
dollars and

cents, according to the condition of said
bond, but therein wholly failed, to the
plaintiff's damage, &c. Held, that, were
there no other objection to the breach than
its omitting to state the amount of said
judgment, this omission would show it to
be insufficient.—Malone v. McClain et al.,

532

44. A note executed to Lorena Emerine
Evans, and assigned on the back thereof
to the plaintiffs by George Smith and Lo-
rena Emerine Smith, was filed before a
justice of the peace as a cause of action,
and a judgment rendered against the ma-
ker by default. There was no averment
showing that Lorena Emerine Evans and
Lorena Emerine Smith were the same per-
son. On appeal, in the Circuit Court, the
defendant moved the Court to dismiss the
suit. Held, that the motion should have
been sustained.-Evans v. Secrest et al.,

POOR.

See CONTRACT, 10, 11.

POSSESSION.

571

See APPEAL. ARBITRATION, 4. AWARD, 4.
BILLS OF EXCHANGE, 4, 12. CHANCERY, 12,
18, 22. CONTINUANCE. CONTRACT, 21.
FRAUDULENT CONVEYANCE, 5. HIGHWAY,
1. INDICTMENT, 14. INJUNCTION, 1, 2, 3,
4, 5, 6, 7. JUDGMENT, 2, 3. VERDICT, 1,
2, 3, 4, 5.

1. Where the Circuit Court before which,
and the time at which, a party is sum-
moned to appear, are specified in the writ,
he cannot object that the place where the
Court was to be held was not sufficiently
indicated.-Davidson et al. v. Alvord et

ment may be amended under the R. S.
1843, at any time before judgment, by
striking out the name of one of several
defendants.
Ibid.

4. The R. S. 1843 authorize the issuing of
a scire facias to revive a judgment against
the personal representatives of a deceased
defendant.
Ibid.

7. Before the rendition of judgment upon
the verdict for the plaintiff in slander,
the defendant moved for a new trial. The
Court took the motion under advisement,
and continued the cause until the next
term. The record of such next term
showed that the defendant then came and
suggested the death of the plaintiff, since
the preceding term of the Court; and that
the attorneys of record of the plaintiff
also came, and agreed to remit a specified
part of the verdict, in consideration of
which the defendant agreed that the Court,
without a decision of the motion, should
render judgment for the residue of the
verdict; which the Court thereupon did.
Held, that the record did not establish
that the plaintiff was dead when the
judgment was rendered.-Rundles et al. v.
Jones,

35

8. The facts that errors of law were assigned
in the Supreme Court by the executors of
the plaintiff below, and that they were
pleaded to by the defendant, furnish no
evidence that the plaintiff below was dead
when the judgment was rendered in the
Circuit Court.
Ibid.

52

9. An attorney at law against whom charges
have been preferred for mal-conduct in
office, is not entitled to have the charges
tried by a jury.—Ex parte Robinson,
10. The proviso in the 11th section of the
act of 1838 regulating the practice in suits
at law, which enacts that, if in any of the
actions or suits enumerated in that sec-
tion, judgment be given for the plaintiff
and afterward reversed for error, a new
action may be commenced within a year
after such reversal, applies to suits in
chancery as well to actions at law.-Mc-
Kinney v. Springer,

59

11. A party who has applied to chancery
for relief and obtained a decree, when his
remedy was exclusively at law, may, un-
der said proviso, at any time within a
year after the reversal of such decree for
error, prosecute his action for the same
Ibid.
matter at law.
12. After the transcript of a record has been
filed in the Supreme Court, the Court be-
low may correct a clerical error in the re-
cord, and upon the correction being pro-
perly certified to the Supreme Court, it
will become part of the record of the lat-
ter Court.-Jones, Administrator, v. Van
Patten,
13. Exceptions to the admissibility of evi-
dence will not be regarded by the Su-
preme Court, in a civil action, unless they
appear, by the record, to have been taken
before the jury retired to deliberate upon
their verdict.
Ibid.
14. Exceptions to the instructions of the
Court to the jury, will not be noticed in
the Supreme Court, unless they appear,
by the record, to have been taken before
the jury delivered their verdict. Ibid.

107

15. It is not error for the Court to refuse to
give an irrelevant instruction to the jury.
-Philips v. Doe d. Tucker,
132
16. In a proceeding in foreign attachment,
property of the absconding debtor must
have been attached in the county where
the writ of attachment was issued, or a
person in that county summoned as a gar-
nishee, before process can legally issue,
under the R. S. 1843, to another county,
against a garnishee resident therein.—
-Reinhard v. Keith,
137

17. To authorize a judgment by default in a
proceeding in foreign attachment, against
a garnishee served with process in, and
being a resident of, another county than
that in which the writ of attachment was
issued, it is necessary, under the R. S.
1843, that property of the absconding
debtor shall have been attached, or a gar-
nishee served with process, in the latter
county.
Ibid.

18. The plaintiff will not be allowed, after
verdict, to amend his replication, or to file
an additional one.-.
-Redman v. Taylor,
144

19. An action at law was submitted, by
agreement, to the president and one of the
associate judges of the Circuit Court, the
other being absent, for trial, and, upon
hearing the evidence, the president was
of opinion that the plaintiff should have
judgment, and the associate that the de-
fendant should have judgment; and they
could not agree. Held, that under such
circumstances, the cause should have been

24. A. residing in Jackson county, and B.
in Clark county, were sued in assumpsit
in the Jackson Circuit Court. Each was
served with process in the county where
he resided. The plaintiff, afterward, by
leave of the Court, amended his writ and
declaration by striking out the name of
A. B. was then called and defaulted, and
a jury was impanneled, which assessed
the damages against him. The assess-
ment was set aside, and, on the plaintiff's
motion, another jury was called and a
new assessment made, and judgment was
rendered thereon. Held, that the leave
to amend was properly granted. Held,
also, that A. and B., when served with
process, were brought within the jurisdic-
tion of the Court, and that the dismissal of
the suit as to A. did not divest the juris-
diction over B., the record not disclosing
that A. could not have been legally in-
cluded in the judgment. Held, also, that
the setting aside of the first assessment
of damages and the awarding of another
venire must be presumed, the record not
showing the contrary, to be right.-Re-
bertson v. Thompson,

190

25. In a proceeding in attachment against a
steam-boat, under article 2 of chapter 42
of the R. S. 1843, the giving of a bond
for the discharge of the boat as authorized
by the Statute, operates virtually to set
aside a previous judgment by default ren-

210

32. In a suit by an infant before a justice
of the peace, the naming of a person as
next friend, in the summons, may be con-
sidered as an appointment of the person
as next friend.-Usher v. Cornwell,
33. A defendant who was sued by an infant
before a justice of the peace, appeared to
the suit before the justice, went to trial
on the merits, and suffered judgment to
be rendered against him, without making
the objection that the next friend of the
infant had not consented in writing to his
appointment. The cause was appealed
to the Circuit Court, where the defendant
moved to dismiss the suit for the want of
such written consent of the next friend;
but the Circuit Court was not informed,
by affidavit or otherwise, that the defend-
ant did not know of the omission com-

plained of, whilst the suit was pending
before the justice. Held, that the Circuit
Court correctly refused to dismiss the
Ibid.

suit.

34. Where the declaration consists of a spe-
cial and a common count, and the evi-
dence received at the trial is admissible
under the common count, the judgment
for the plaintiff will not be reversed be-
VOL. III.-79

35. Where the general issue and special
pleas are filed to the action, and the de-
fense set up in the special pleas is admis-
sible under the general issue, the judg
ment for the plaintiff will not be reversed
because a demurrer to the special pleas
was erroneously sustained, if no injury
appears to have been done.
Ibid.

36. The revival of a judgment against the
principal, by a scire facias issued against
him alone, does not release the replevin-
bail-Stockwell et al. v. Walker et al., 215
37. After the jury has been impanneled and
the evidence heard, the plaintiff may, un-
der the R. S. 1843, amend his writ and
declaration by striking therefrom the
names of any number of the defendants.
-Henry v. The State Bank of Indiana,
216

38. The Supreme Court cannot say that the
Circuit Court erred in overruling a mo-
tion for a continuance, when the affidavit,
on which the motion was founded, refers
to another affidavit as containing the facts
relied upon for the continuance, which
latter affidavit, though made in the same
cause, is not a part of the record.-De
Puy v. Everett,

257