May Term, in charge. But in the absence of any other improper con1854. duct on the part of the juror while thus absent, the act is ALEXANDER not of itself sufficient to set aside the verdict.

V.

DUNN.

It is also complained, that a prejudiced juror was called to fill up the panel, after the defendants had exhausted their right of challenge. The right of peremptory challenge might have been exhausted, but not the right of challenge for cause. It was in the power of the defendants, at the proper time, to disclose his prejudice to the Court, by the application of the ordinary test. If, instead of doing so, they permitted the juror to be sworn, they have no reason to complain. If the juror was examined touching his competency, we must presume that his impartiality was satisfactorily shown to the Court, unless it clearly appear by the record, as in the case of Goodwin v. Blachley et al., 4 Ind. R. 438, that the juror was not wholly indifferent.

The jury were permitted to take into their retirement a paper containing the estimate of counsel as to the amount due Dunn. At the same time they were instructed by the Court, that such paper was not evidence. What influence such a paper could have, seeing that all the materials necessary to an almost mathematical conclusion, were fully disclosed in the evidence, it is not easy to see. It is thought by a majority of the Court not to be error. But since it was not a paper in the cause, nor placed in the hands of the jury by consent, and might be made the medium of fraud and abuse, the practice is, to say the least, by no means commendable.

But the main question in the case is, whether Dunn is entitled to recover under the special contract, or on the count for goods sold and delivered.

It was admitted by Dunn, in open Court, that at the date of the contract, October 5, 1847, he had not hogs enough of his own, which could be made to fill the contract within the time specified. Dunn further admitted that of the sixty-nine hogs, fifteen averaging two hundred and eighty pounds, or nearly so, were purchased by him as he was driving his own hogs to Gosport to be slaughtered.

Without these fifteen hogs, purchased a day or two before May Term, the 30th of December, 1847, it was admitted that Dunn 1854.

could not have filled the contract.

It was in evidence that in November, Dunn told Alexander that his own hogs would not fill the contract, and applied to Alexander to let him buy other hogs to make out the number and weight required; that Alexander objected, saying that he had contracted for the lot of hogs owned by Dunn at the date of their contract. At the time of this conversation, pork had fallen to 2 dollars per hundred. It was further in evidence, that at the time of the making of the contract, the hogs sold were in Brown county. Also, that on the morning of the day the hogs were slaughtered, December 29, 1847, Alexander told Dunn that the fifteen hogs purchased of Burton and Sink would not be received under the contract, but that he would allow him 2 dollars per hundred for them. That if Dunn's own hogs filled the contract, he would take them accordingly, but if not, it would have to take its chance with other pork. That Dunn replied he would bring the hogs to the pork-house in the morning.

These facts are relied upon by Alexander, to show that Dunn had abandoned the contract, and delivered the hogs on this second proposal of Alexander.

On the other side, it is shown that Alexander, on that very day, instructed his agent, that when Dunn came to the pork-house with his hogs, he should receive them, and have no difficulty with him. They were received without objection, except as to the one tainted.

This Dunn relies on as a waiver of the objection taken to the purchase of part of the hogs, and an acceptance of the whole under the contract.

The question was thus presented to the jury by the evidence, whether Dunn had acceded to the new terms proposed by Alexander on the 29th of December, or Alexander had received the hogs under the written contract. It was a question of fact, peculiarly within their province to decide; and they found that the hogs were delivered under the written contract.

ALEXANDER

V.

DUNN.

May Term, 1854.

With this finding we are not satisfied. But if the instructions were correct, and fairly presented the issue to ALEXANDER the jury, we adhere to the settled policy of the Court, not DUNN. to disturb the verdict though we could not concur in it.

V.

The instructions, so far as they relate to this part of the case, are the following:

"It is a contract by Dunn to deliver specific hogs which, at the time of the contract, belonged to Dunn. Therefore the defendants, under such a contract, would not be bound to receive any hogs which Dunn might afterwards buy. If, however, Dunn tendered to defendants as well a number of hogs thus afterwards purchased by him, as some of his own belonging to him at the time of the contract as therein stated, so as to make the number, weight and quantity of pork hogs according to said contract, and the defendants received them under that contract, the jury ought to consider the defendants as waiving all right to object on the ground that they were not the same hogs contracted for; and they would, in that case, be liable to pay according to the written contract."

It is well settled that Dunn could not purchase hogs to fill the contract. The hogs purchased by Alexander were the hogs owned by Dunn at the time the contract was made. If Dunn did not then own a sufficient number which could at the time for delivery be made to meet the average weight required, Alexander was released. Mason v. Cowan's Administrator, 1 B. Monroe 7. Such was admitted to be the fact.

The question then turns on the waiver of Alexander. Did he waive his right to insist on a strict compliance, permit Dunn to purchase other hogs, and accept the hogs thus purchased as Dunn's within the terms of the contract?

A majority of the Court think the foregoing instructions fairly present the issue to the jury, and, therefore, affirm the judgment.

The minority are of opinion that the instructions of the learned judge, as applied to the facts, tended to mislead the jury, and that therefore the judgment should be reversed.

STUART, J., dissented from the opinion of the Court as May Term, to the instructions.

Per Curiam.-The judgment is affirmed with costs. Cause remanded, &c.

O. H. Smith and S. Yandes, for the appellants.

G. G. Dunn, for the appellee.

1854.

SANFORD

V.

FREEMAN.

SANFORD and Another v. FREEMAN and Another.

A. recovered a judgment against B. in the Elkhart Circuit Court, at the September term, 1840, for 541 dollars. On the 1st of November, 1841, C. and D. executed on the judgment-docket, immediately below the entry of said judgment, a writing obligatory, as follows: We, the undersigned, hereby acknowledge ourselves replevin bail and security for the payment of the above judgment and interest, in manner following, to-wit: 100 dollars within sixty days from date, and the balance in three equal annual instalments in one, two and three years, provided that no execution shall at any time issue for any greater sum than shall be actually due upon said judgment, according to the foregoing stipulations, at the time of issuing said execution. No execution having been issued at any time for any greater sum than was actually due thereon at the time of issuing the same, according to the stipulations in said obligation, and the judgment being in force and unpaid, A. sued C. and D. in debt upon the obligation. Held, that the suit could be maintained.

APPEAL from the Elkhart Circuit Court.

DAVISON, J.-Debt by the appellees against the appellants. The declaration alleges that the plaintiffs, at the September term, 1840, recovered a judgment in the Elkhart Circuit Court against one George N. Martin, for 541 dollars; and that on the first of November, 1841, the defendants executed on the judgment-docket of the Court, immediately below the entry of said judgment, their writing obligatory in these words: "We, the undersigned, hereby acknowledge ourselves replevin bail and security for the payment of the above judgment and interest, in manner following, to-wit: one hundred dollars within sixty days from this date, and the balance thereof in three equal annual instalments, in one, two and three years; provided VOL. V.-9

Saturday,
May 27.

Y.

May Term, that no execution shall at any time issue for any greater 1854. sum than shall be actually due upon said judgment, acSANFORD cording to the foregoing stipulations, at the time of the FREEMAN. issuing of said execution." It was further alleged, that no execution was at any time issued upon said judgment for any greater sum than was actually due thereon at the time of issuing the same, according to the stipulation in the writing obligatory; and that the judgment is in full force and unpaid, &c. Demurrer to the declaration overruled, and judgment for the plaintiff.

In support of the demurrer, it is contended that the instrument declared on is not a valid contract; that when it was executed, the judgment had ceased to be repleviable; that it was imperative as a recognizance of replevin bail, and, therefore, invalid for any purpose.

That position is untenable. If the instrument was in form a mere recognizance, or had been the foundation upon which an execution could have issued, the right to sue upon it might be questionable. But as it stands, we can perceive no reason why it should not constitute a valid obligation. It was entered into voluntarily, contains every requisite of a binding contract, and its purpose seems to be in conflict with no principle of the law. In point of fact, the parties may have intended the instrument to operate as a recognizance of replevin bail; but it evidently had another object, viz., to secure the payment of the judgment by instalments at given periods. The instrument, no doubt, has the force of an ordinary agreement. And why should it not bind the appellants to pay in the manner stipulated? To secure the judgment to the judgment creditors, was the main object of the entry upon the docket. And we are bound to give that entry such a construction, if possible, as will accomplish and not defeat its purpose. Forbearance to issue execution against the judgment defendant, was the sole consideration upon which the instrument was executed. This the appellees have performed. The appellants have received all the benefit to which they were entitled under the agreement; and to permit them to