and damages on said contract, for which he asks judgment. The suit was commenced on the 6th day of March, 1868.
We think this paragraph of the complaint was sufficient. The second paragraph of the complaint is for personal property sold and delivered, and is in the usual form. We see no objection to it.
The form of the judgment was amendable in the common pleas, and no application to correct it, or any objection to it, appears to have been made in that court. The objection cannot be presented here for the first time. Ebersole v. Redding, 22 Ind. 232, and the cases there cited; Watts v. Green, 30 Ind. 98.
The judment is affirmed, with five per cent. damages and costs.
O. P. Ferris and H. T. Lipperd, for appellant.
S. M. Jones, for appellee.
inal papers, the appeal operates to
suspend further proceedings under
said judgment or determination.
Young v. The State.....46
Same.-Liquor Law.—License.—
Where an appeal has been taken by
remonstrants from an order of the
board of county commissioners grant-
ing a license to a person to retail in-
toxicating liquors, and such person
has received notice of that fact, the
appeal thenceforward suspends said
order and the right to sell under such
license. Molihan v. The State, 30
Ind. 266, explained and criticised.
3. Justice of the Peace.-Where a
party against whom judgment has
been rendered by a justice of the
peace has been granted leave to ap-
peal to the court of common pleas
after the expiration of thirty days,
under section 68, 2 G. & H. 597, and
he fails to perfect his appeal by hav-
ing the order to the justice to certify
up the case issued and served, and
by causing the justice to make out a
transcript of the proceedings and
judgment before him and file it, with
the original papers, in the office of
the clerk of the common pleas, with-
in a reasonable time, and until the
case has been regularly called for
trial, the appeal may be dismissed on
motion of the adverse party. Davis
v. Luark........
............403
Exclusion of.-An erroneous ruling
excluding a person from appearing
as an attorney in a cause cannot avail
the party for whom said attorney pro-
posed to appear, if excepted to only
by said attorney. Rosenbaum et al.
v. McThomas.........
-331
the submission shall be made a rule
of a designated court, the arbitration
cannot be regarded as statutory, but
may be valid as a common law arbi-
tration. Hawes et al. v. Coombs et
al.............
...........455
2. Arbitration Bond.—Suit on.-Pre-
sumption.-In a suit on an arbitra-
tion bond for the failure of the de-
fendant to perform his part of the
award, it will be presumed, the con-
trary not appearing, that the award
is the result of an adjustment by the
arbitrators of all, and not merely a
part of the matters included in the
submission.........
......... Ibid.
3. Same.-Pleading.-Where, in such
an action, the part of the award to
be done by the plaintiff is not void 1.
and incapable of enforcement by the
law, or the performance thereof is
not by the terms of the award made
a condition precedent to that to be
done by the defendant, an answer al-
leging a readiness of the defendant to
perform on his part upon compliance
with the award on the part of the
plaintiff is insufficient, whether the
complaint alleges performance on the
part of the plaintiff or not.......Ibid.
Damages.-Mitigation.-In an action
to recover damages for an assault and
battery, it having appeared in evi-
dence that the injury complained of
was inflicted immediately after a dis-
pute between the parties concerning
certain rent, one claiming that it was
due, the other insisting that it had
been paid, and each impeaching the
other's veracity, the defendant offered
to prove, in mitigation, that what he
had said about the rent was true, and
that what the plaintiff had said was
false.
Held, that the offered evidence was
properly excluded. Butt v. Gould.552
ASSIGNMENT OF ERRORS.
See SUPREME COURT; HILBORN V.
DIBBLE, 519; THE I. P. & C. R. Co.
v. BOWERS, 480.
Bill of Exchange.—A stipulation
in a bill of exchange for the payment
of attorney's fees for collecting the
bill is not usurious; and in a suit on
the bill, the drawers, acceptors, and
indorsers will be liable for reasonable
attorney's fees. First Nat'l Bank of
Martinsville v. Canatsey et al.....149
Promissory Note.-Joinder of
Causes.-Parties.-Where a prom-
issory note provides for the payment
of attorney's fees if suit be instituted
thereon, attorney's fees may be re-
covered in an action on the note, by
the person entitled to sue for the
debt; and the attorney for whom
such fees are claimed need not be
made a party plaintiff, though the
fees have not been paid before the
institution of the suit. Johnson et
al. v. Crossland et al................334
Evidence.-Where, in a prosecution for
bastardy, the prosecuting witness tes-
tified that the child was begotten in a
certain month or the next following
month, and could not be any more
definite as to the time, and it ap-
peared in evidence that about the
date at which the child was probably
begotten, allowing the ordinary pe-
riod of gestation, being about the
first of the former month designated
by her, she had sexual intercourse
with several men, and it was not
shown that there was anything pecu.
liar in one of the connections or at-
tending circumstances which enabled
Accommodation Indorser.-Appli
cation of Paper to Particular Pur-
pose.-A bill of exchange was in-
dorsed for accommodation, to enable
one to raise money, in the application
of which the indorser had no inter-
est; and he for whose accommoda-
tion it was indorsed, instead of so
using the bill, used it to pay a pre-
existing debt.
Held, that such appropriation of the
Promissory Note.-Demand.—In a
suit on a promissory note payable in
bank, against the maker alone, it is
not necessary for the plaintiff to aver
or prove a demand of payment at the
time and place specified in the note.
McCullough v. Cook
290
4. Same.-Payable in Bank.-In-
dorsee. In a suit on a promissory
note made payable to order or bearer
in a bank in this State, brought by
an indorsee against the maker, the
fact that the note was procured by
fraud does not constitute a good de-
fense, if the plaintiff purchased the
note for a valuable consideration, in
the usual course of business, before
it was due, and without notice of the
fraud. Hereth et al. v. The Mer-
chants' National Bank...
.380,
Same.-Patent Right.-The words,.,
"this note is given for patent right,"
written on the margin of such a note,
will not authorize the jury in such
action on said note to infer that any
indorsee thereof had knowledge or
notice that the patent for which the
note was given was of no value, or
that the note was procured by fraud.
Ibid.
bill did not release said indorser from 6.
liability on the bill in the hands of
one who had received it with notice
of these facts. Fetters v. The Mun-
cie Nat'l Bank..........
..251
Same.-Blanks.-Where a bill of
exchange has been drawn, accepted,
and indorsed, with blanks for the
date, amount, and time, and in this
condition delivered to one to whom
the drawer was at the time indebted,
or to whom the drawer and acceptor
were indebted, to be used in renewal
of paper formerly given for such in-
debtedness, with direction to such
creditor to fill up said blanks with
the proper date, amount, and time
when said former paper should be-
come due, an accommodation indorser
will not be released from liability on
said bill by the fact that when said
former paper became due and said
blanks were thereupon filled by said
creditor, said drawer and acceptor,
solvent at the time the bill was drawn,
accepted, and indorsed, had become
insolvent, of which the creditor had
notice when he filled said blanks.
Same.-Purchaser with Notice.-
Where such a note has been pro-
cured of the maker by the fraud of
the payee, by whom it has been in-
dorsed to a third person, another
person who has purchased the note
of such indorsee with actual knowl-
edge that it was so procured, or with
notice of any facts indicating to a
reasonably prudent man that it was
so procured, cannot recover in a suit
on the note against the maker, unless
said third person of whom he pur-
chased it was an innocent holder for
value.......
...Ibid.
Same.-Purchaser from Innocent
Holder.-A person to whom a prom-
issory note governed by the law mer-
chant has been transferred or in-
dorsed, for a valuable consideration,
before it was due, by an innocent
holder thereof for value, may recover
on it against the maker, though he
knew at the time he purchased it
that it had been procured of the
maker by the fraud of the payee.
Ibid.
8. Same.-Holder in Good Faith.-
One who purchases a promissory
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