May Term, plaintiff to a stand on this or that count. If the Court 1854. could nonsuit, or, which is the same thing, drive the plainCLARK tiff to elect between counts, the power would be liable to WILDRIDGE. abuse. Such a claim, it is believed, has never been exercised in this state.

V.

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

C. H. Test, for the plaintiff.

J. S. Newman, for the defendant.

Thursday,
June 1.

The right of recoupment can only exist where the defendant, instead of recouping, could bring his cross action.

Where the refusal of instructions which have been refused, or the giving of instructions which have been given, would be right, under any supposable state of facts, it will be presumed on error (when the evidence is not set out in the record) that such a state of facts existed.

In assumpsit, in the Circuit Court, where the plaintiff, no set-off having been pleaded, recovered less than 50 dollars, the defendant, by the R. S. 1843, was entitled to costs.

ERROR to the Franklin Circuit Court.

STUART, J.-Assumpsit for work and labor, materials, &c., and a special count on a parol lease for five years. Plea, the general issue. Verdict and judgment for the plaintiff, Clark, for 30 dollars. Judgment in favor of Wildridge for costs.

Clark brings the case to this Court.

The bill of exceptions partially discloses the facts. It runs thus:

"Clark introduced evidence tending to prove that the plaintiff and defendant had agreed together by parol, that the plaintiff should have a lease on a tract of land of the defendant, for five years; in consideration of which the plaintiff should pay one-half of the grain raised on the premises as rent, cultivate the land properly, and build a house

thereon. That under the contract the plaintiff entered, May Term, built the house, and rendered the annual rent for a period

1854.

of three years."

CLARK

V.

The bill of exceptions proceeds further to say that the WILDRIDGE. defendant introduced evidence tending to prove the contrary (meaning, we presume, that the term was originally for three, instead of five years); that defendant had given Clark written notice to quit at the end of three years; that Clark did give up possession with a protest and notice that he would look to Wildridge for his labor, expenses and materials, in building the house, &c.

The record does not purport to contain all the evidence. In the first count of the declaration, which sets out the contract specially, the value of the house is laid under a videlicet at 200 dollars. But the succinct statement of the evidence is silent on that point.

Clark complains of the instructions which the Court refused to give, as well as those given. Considering that the value of the house appears to be the only matter in controversy, the following is the most material. The Court instructed the jury that the defendant Wildridge was entitled to recoup the use and occupation of the house for three years, against its value.

Whether this instruction was erroneous or not, must depend upon the evidence.

Recoupment is admitted, among other reasons, to avoid circuity of action. McAlister v. Reab, 4 Wend. 483. But the right to recoup can only exist where the defendant, instead of recouping, could bring his cross action. Allain v. Whitney, 1 Hill 484.

It is very clear from Clark's evidence that Wildridge had no right of action in any form against Clark for use and occupation; for that was part of the possession enjoyed for which Clark had paid rent. And it is equally clear that if the lease was only for three years, as Wildridge's evidence tended to prove, the instruction was harmless. For, according to the terms of such contract, Clark's time had expired; and he had no further interest in either the land or the house; and consequently no right of action. VOL. V.-12

May Term, 1854.

V.

BARBOUR.

Now, without the evidence, we can not say whether the instruction is erroneous, harmless, or correct. We could THALMAN easily imagine a state of facts to which the instruction would be applicable, as the law of the case. But in the conflicting tendencies of the evidence submitted to the jury, Clark's tending to prove one thing, Wildridge's tending to prove the contrary, we can not tell which tendency preponderated. There is no safety in this Court hazarding a conjecture what the evidence might have been. And, for the parties, there is no way to test the instructions either refused or given in a great majority of cases, but to put all the evidence upon the record.

Otherwise if the refusal of instructions, and on the same principle if the instructions given, would be right under any supposable state of facts, we must presume those facts existed. Kinsey v. Grimes, 7 Blackf. 290.

The recovery being less than 50 dollars, and without setoff pleaded, the judgment for costs is correct. Edmonds v. Paskins, 8 Blackf. 196.

Per Curiam.-The judgment is affirmed with costs.
G. Holland, for the plaintiff.
J. Ryman, for the defendant.

THALMAN and Another v. BARBOUR and Others.

An agreement of the holder of a promissory note not to sue on the note for a limited time, is no bar to a suit brought before such time has elapsed. Where the general issue and a special plea have been filed, and the defence set up in the special plea is admissible in evidence under the general issue, the judgment will not be reversed because a demurrer to the special plea was erroneously sustained.

The statute of 1843 requiring non-resident plaintiffs to give security for costs, was not intended to apply when either of the plaintiffs was a resident of the state.

ERROR to the Marion Circuit Court.

DAVISON, J.-Barbour, Shaw and Buell sued Thalman

1854.

THALMAN

V.

and Evans in assumpsit upon a note for the payment of May Term, 2,000 dollars. The general issue and four special pleas were pleaded. The second, third and fourth led to issues of fact. To the fifth a demurrer was sustained. The BARBOUR cause was submitted to the Court for trial upon the issues of fact. The Court found for the plaintiffs, and judgment was given on the finding of the Court.

The fifth plea alleges that after the execution of the note sued on, the defendants assigned to the plaintiffs a title-bond for a certain lot in the city of Indianapolis, valued at 1,800 dollars; and that, in consideration therefor, the plaintiffs agreed that no suit should be brought on said note until after the 12th of April, 1853, &c.

An agreement made by the holder of a promissory note not to sue on the note for a limited time, is no bar to a suit brought before the expiration of the given time. 5 Blackf. 125.—6 id. 282.-1 Ind. R. 382. The demurrer to the fifth plea was correctly sustained.

But if the ruling of the Court, in that respect, was erroneous, that error would not be sufficient to reverse the judgment. Suppose the defence set up by the fifth plea to have been valid, it would have been admissible under the general issue. 8 Blackf. 41.

After the issues in the cause were made, the defendants filed their affidavit, alleging that Lucius Barbour, one of the plaintiffs, was, at the time of the commencement of the suit, a non-resident; and thereupon moved for a rule against the plaintiffs to give security for costs. This motion was overruled. The statute provides that "plaintiffs who are not residents of this state," shall give security for costs. R. S. 1843, p. 675. The reason and spirit of the act do not apply to the case before us. The object of the enactment is, that a defendant shall not be put to answer an action, until his costs are secured by some person residing within the state. Two of the plaintiffs in this case are residents, and liable for all the costs adjudged to the defendants. We think the motion was rightly overruled.

May Term, 1854.

RUSSELL

V.

HOUSTON.

Per Curiam.-The judgment is affirmed, with 2 per cent. damages and costs.

R. L. Walpole, for the plaintiffs.

D. McDonald, W. A. McKenzie and W. Henderson, for the defendants.

Thursday,
June 1.

RUSSELL v. HOUSTON and Others.

Where a sheriff's sale of a tract of land is fairly made in gross, it can not be disturbed by a judgment-creditor of the defendant because the tract contained a greater number of acres than it was supposed to contain when it was levied upon, appraised and sold.

A judgment is not a lien upon the equitable estate of the debtor.

Before a bill filed to enforce the collection of a judgment out of the equitable estate of the debtor, he may, if guilty of no fraud, convey such estate to a third person.

A purchaser of land under a junior judgment, may enjoin the sale of the land on an execution issued on a prior judgment, until the other property of the debtor which has been levied upon has first been exhausted.

APPEAL from the Switzerland Circuit Court.

DAVISON, J.-Bill in chancery by Russell against Houston, Dufour and others. The object of the suit was twofold. 1. To set aside a sheriff's sale of a tract of land, sold as Dufour's property and purchased by Houston. 2. To protect another tract sold as the property of Dufour on a junior judgment and execution, and bought by Russell, from sale on an execution issued on a prior judgment.

Upon final hearing the Circuit Court dismissed the bill. 1. It appeared that Dufour, on the 5th of May, 1851, mortgaged a tract of land in Switzerland county to one Schenck, to secure the payment of a certain sum of money within a specified period. The mortgage describes the land "as bounded by John F. Dufour's land on the west; on the north by Protzman's land; on the east by the land of Francis Lindley; and on the south by lands owned by James Dalmazo; supposed to contain 40 acres."

The mortgage was foreclosed, and on the 17th of Febru