defective, the latter Court awarded a cer-
tiorari to the clerk of the Circuit Court
to certify a complete transcript of the pro-
ceedings. The Circuit Court, after the
term had expired at which the decree,
which was upon default, was made, and
after the certiorari had been issued, order-
ed the clerk to copy the subpoenas and re-
turns into the record, it having been
shown to the Court that, when the default
was taken, proof of the service of the sub-
poenas had been duly made. Held, that
it was competent for the Court to make
the order. Colerick et al. v. Hooper, 316
45. When a bill in chancery is against adult
residents of the state, who are personally
served with notice, and the allegations of
the bill are certain-especially if the sub-
ject-matter of the allegations is of a cer-
tain and definite nature-a final decree,
after a decree pro confesso upon a default,
may be made without proof.
46. While the law was, that, where evidence

Ibid.

was objected to, the grounds of the objec-
tion should be stated, objections were
made without assigning the reasons.
Held, that they were correctly overruled.
-Jones et al. v. Ransom,
327
47. Instructions to the jury should not as-
sume that facts recapitulated in them have
been proved.-Conaway v. Shelton, 334
48. The plaintiff's attorneys in the present
cause having been improperly allowed to
argue to the jury that the fact of the de-
fendant's having procured a change of ve-
nue was a circumstance which should
weigh against him, the defendant asked
the Court to instruct the jury that they
had nothing to do with that fact, and that
it could not properly prejudice the defend-
ant or his cause. Held, that the instruc-
tion should have been given.

Ibid.

58. While the rule of practice in the Su-
preme Court was, that objections to evi-
dence should be pointed out at the trial,
or otherwise the overruling of them could
not be assigned for error, objections were
made to evidence without stating the
grounds. Held, that the objections could
not be noticed on error.

Ibid.

59. The omission of a similiter to the gene-
ral issue is immaterial after verdict.-
373
60. It is not material on error whether a
-Templin v. Krahn,
deposition read by the plaintiff at the trial
should have been suppressed or not, if the
evidence was amply sufficient without it
to sustain the suit. — Billingsley v. The
State Bank,

375
61. Where land is about to be sold upon ex-
ecution on a judgment which has ceased
by lapse of time to be a lien thereon, the
proper proceeding to prevent the sale is
by inotion on the law side of the Court to
have the levy set aside.-Stockwell et al.
v. Walker et al.

384

62. A judgment rendered on a new trial will
not be reversed because the new trial was
granted upon insufficient grounds, if the
adverse party has admitted before the
Court below the truth of a material part
of the evidence to admit which the new
trial was granted.-Houck v. Deitz, 385
63. The fact that such admission was made

to prevent a continuance, makes no differ

ence.

Ibid. 64. Where the evidence given at the trial is not in the record, it will be presumed that the judgment was in accordance with it. Ibid. 65. Objections to the competency of witnesses in a cause tried in 1842, must have been made at the trial or they will not be noticed by the Supreme Court.-Zion et al. v. The State ex rel. Norris et al., 397 66. A plaintiff who has voluntarily abandoned his suit has no right to an appeal. -The State Bank v. Hayes,

400 67. A fact in issue, and which was necessary to have been proved to authorize the judgment of the Circuit Court, will be presumed to have been proved, if the record does not show the contrary.-Halsey v. Matthews, 404

68. The party, who by his pleading has tendered an immaterial issue, cannot have the judgment reversed because the case was tried on that issue, and the judg ment was, therefore, not decisive of the merits.-O'Neal v. Wade, 410

69. A judgment of the Circuit Court will not be reversed for an erroneous ruling of the Court, when the party complaining has not been injured thereby.-Alden et al. v. Barbour et al.,

414

418

70. The setting aside of a special plea cannot be complained of when another remains under which the defense set up in the former plea could be proved in bar of the action.Wood v. Commons, 71. A judgment will not be reversed because an erroneous instruction was given to the jury, if it could have done the parIbid. ty complaining no injury.

72. Where the evidence is not contained in the record, the Court will presume that the facts proved were such as to authorize the judgment.-Higman v. Brown, 430 73. An objection to evidence given in a cause tried before the passage of the act of 1851 on the subject, will be held to have been properly overruled, if the ground of the objection does not appear in the record.Hesler v. Degant, 501

74. Objections to instructions given to the jury will not be regarded, if the record does not show that the instructions were excepted to when they were given, or at any time before the jury gave their ver

dict.

Ibid. 75. Where an instruction given to the jury is objected to, but the evidence given at the trial is not contained in the record, and it does not of itself appear to be objectionable, the verdict of the jury will

79. A plaintiff who has suffered a voluntary non-suit cannot afterward prosecute a writ of error for a refusal of the Court, upon his motion, to reinstate the cause.-Wilson v. The Etna Insurance Company, 557 80. If the minutes of evidence taken by counsel should be surreptitiously introduced into the jury-room by the procurement of his client or the connivance of a juror, and should be there read and used as a basis for arriving at a verdict, or should otherwise influence the finding of the jury, it would be good cause for setting aside the verdict and awarding a new trial; but where such minutes have got before the jury by accident and have not influenced their verdict, it will not be.— Ball v. Carley,

577

the note, made an oral agreement with the principal for a new loan of the money, upon the sole responsibility of the latter; but the Court instructed the jury that the evidence constituted no defense to the action. Held, that the instruction of the Court was erroneous.-Musgrave et al. v. Glasgow, 31 2. A surety, who has discharged a judgment rendered against him for a debt of his principal, by executing a note not negotiable by the law-merchant, and a mortgage, for the amount of the judgment, cannot sue his principal for money paid until he has paid the note and mortgage, or a part thereof.-Bennett v. Buchanan,

47 3. To an action by the assignee against the makers of a promissory note, being principal and sureties, the defense was that, after the note became due, and before the assignment, the time of payment was extended by agreement between the principal and payee, without the consent or knowledge of the sureties. The only evidence of such extension was three indorsements made upon the note by the payee, after it became due, each a year apart from the other, to the effect that he had, at the date of the indorsements severally, received the interest for a year in advance, and the note was to stand, without suit, to the end of the year. Held, that it did not appear that the time of payment was extended by agreement made by the payee with the principal, nor that the interest might not have been paid by either or all of the makers.Cheek et al. v. Glass, 286 4. A valid agreement by a creditor with the principal debtor, without the consent of the surety, not to sue for a limited time after the debt is due, discharges the surety.-Harbert v. Dumont et al.,

346

their wives, were the owners in fee of the
land mentioned in the plea, but not aver-
ring that they were the owners at the
time when the conveyance was to have
been executed, is bad.
Ibid.
4. In a suit upon a promissory note by the
assignee against the maker, the latter may
plead, under the R. S. 1843, by way of
set-off, an individual account which he
had against any assignor prior to notice
of the assignment.-Sample v. Lamb, 180
5. Where the account against the assignor
is larger than the amount of the note, the
plaintiff cannot, by releasing the assignor
from liability upon the assignment, ren-
Ibid.
der him a competent witness.
6. The notice of the protest for non-pay-
ment of a note payable at the branch at
Lawrenceburgh of the state bank, stated
that the note was presented, &c., "in the
bank," for payment, &c. Held, that the
words imported that the note was pre-
sented within banking hours.—Henry v.
The State Bank of Indiana,
216

7. The holder of a note payable at a char-
tered bank with this state, may, upon the
note being protested for non-payment, no-
tify all, or any part, of the indorsers of
the fact, and render the indorsers thus
notified liable for the payment of the note.
Ibid.

8. An indorser who has received due notice
of the protest for non-payment of such a
note, held by a bank, will not be dis-
charged because a prior indorser was not
thus notified, notwithstanding it was a
usage of the bank to notify all indorsers
of paper not paid at maturity, of protest.
Ibid.
9. In a suit upon the assignment of a pro-
missory note, the assignor will not be
held to be discharged by the laches of the
assignee, if, upon a judgment obtained
against the maker in due time, the issuing
of an execution was only delayed until a
reasonable time had elapsed after the ad-
journment of the Court at which judg-
ment was rendered; unless some special
cause is shown which made it the duty
of the assignee, as an act of good faith,
to have it issued earlier.-Spears v. Clark,

296

11.

A promissory note was dated at Lafay
ette, but the assignments on it were not
dated as of any place. Suit was prosecut-
ed and judgment obtained against the
makers at that place. Suit was also com-
menced against the defendant, one of the
assignors, and process served on him at
that place. There was also proof that
several of the parties resided there. Held,
that the averment in the declaration on
the assignment of the note, that it was
assigned at Lafayette, was presumptively
established.
Ibid.

12. Where, in a suit by the assignee against
the assignor of a promissory note, the for-
mer shows that he has used due diligence
in prosecuting the maker to insolvency,
it is not incumbent on the plaintiff to
prove that the maker continued insolvent
till the commencement of the suit. Ibid.

13. A note, the assignment of which was
sued on, was signed as follows: S. T.;
T. and S. The declaration averred that
S. T., and T. of the firm of T. and S.,
were the same person. The record of a
suit by the assignee against T. and S. on
the note, alleging that they were the per-
sons who made the note, was in evidence
at the trial, and T. having been examined
as a witness, spoke, in his testimony, of
S. and himself, the defendants in the
judgment, as the makers of the note, and
mentioned no other person. Held, that
the averment was sufficiently proved.

Ibid.

14. In a suit by the payee against the ma-
kers of a note, the latter will not be al-
lowed to show, by parol evidence, that a
guaranty indorsed upon the note was, at
the time it was made, accepted by the
payee in full satisfaction of the note.-
Smith et al. v. Stevens,
332

15. Where a note has been surrendered by
the payce to one of the makers with an
intention of canceling it, a delivery of
the note by such maker to the payee's ad-
ministrator, upon his demand, in igno-
rance of the makers' rights, will not re-
vive the debt.-Sherman et al. v. Sherman,

337

19. A promissory note was made payable to A., his agent or attorney. Held, that while unnegotiated, suit could only be brought upon the note in the name of A. -Templin v. Krahn, 373 20. A promissory note, which had not been negotiated, was lost, and nothing had been heard of its existence, although four years had elapsed from the time when it became due. At the end of the four years, suit was brought upon it-the declaration alleging the loss, &c. Held, that the suit would lie. Ibid. 21. In debt by the payee to recover the amount of a lost note, the plaintiff proved by a witness that a note of the maker, dated on or about the date of the note described in the declaration, and otherwise corresponding with it, had been left with him to collect the interest; that he had made diligent search for the note and could not find it; and that neither the payee nor any other person ever got the note, to his knowledge, out of his possession. Held, that the evidence was sufficient to authorize a judgment for the plaintiff. Ibid.

22. Where notes are given to secure the purchase-money of land, payable respectively on or before a given day, under a contract that a deed is to be executed for the land on the payment of the notes, a suit cannot be maintained on either of the notes after the last has become due, unless a deed was tendered on or before the day when the last note matured.-Malaby et ux. v. Kuns, 388

23. A promissory note not payable at a chartered bank, is not, in this state, governed by the law-merchant. - Blount v. Riley, 471

24. Where a promissory note, whether negotiable by the law-merchant or not, has been assigned after it became due, the admissions of the assignor made before the assignment that the note had been paid, are admissible in evidence against the assignee. Ibid.

ported the sale to the county commissioners as having been made at 60 dollars, which report was accepted; and that the defendant had already paid with the said 40 dollars the amount of 60 dollars, at which sum the lot was reported as having been sold. Held, that these facts were no defense against the note. Ibid.

27. Debt by The State on the relation of S., the clerk of the Carroll Circuit Court upon a sealed note made payable to W. C., school commissioner, or to his successor in office, and given to secure a loan of funds belonging to congressional township No. 26, &c., in Carroll county. By an act of 1844 the office of auditor in said county was abolished and its duties transferred to the clerk of the Carroll Circuit Court. By an act of 1849 the office of school commissioner was abolished and its duties transferred to the auditor and treasurer. Held, that by the act of 1844 the clerk of the Carroll Circuit Court became ex officio the auditor of said county, and it was his duty to bring the present suit; but, held, that, under the R. S. 1843, it should have been brought in the name of the payee of the note.-Bowman et al. v. The State ex rel. Stewart,

524

PROTEST.

sue upon the note.-Upton v. Starr, 508

26. To a suit brought upon a promissory note given to a county agent, the defendant set up in bar of payment that it was given for a part of the purchase-money of a county-seat lot; that the agent sold the lot to the defendant for 100 dollars, of which sum he paid, at the time, 40 dollars, and executed his notes, that in suit being one, for the remaining 60 dollars; that said agent kept the 40 dollars, re

MISSORY NOTES, 6, 7, 8.

PURCHASE-MONEY.

If one of several instalments of purchasemoney for land, be payable before the deed is to be made, it is no defense to a suit brought by the payee to recover such instalment, before the time appointed for the execution of the deed, that the payee had no title to the land at the time when