sary. 10 Johns. R. 198, 230.-15 id. 269.-18 id. 166.-15 May Term, Wend. 566.-1 Denio 583.-6 Ohio 246. But it is contended that Wilson assented to the sale and filling up of the bill; that such assent is proved, first, by his attempt to make arrangements with the drawer for indemnity; and, secondly, by permitting the bill to remain with the holder until suit, without raising any objection. We perceive nothing in these positions that would excuse the fraudulent conduct of the plaintiff. The evidence will not justify the assumption that Wilson attempted to procure an indemnity. But suppose it did: he had the right to provide for any contingency; nor would the exercise of such right be considered a waiver of any legal defence he might have against the bill. The argument that Wilson raised no objection until he was sued, is alike untenable. The plaintiff, when he took the bill, was fully advised of the agreement under which it was indorsed. It was therefore needless for Wilson to call upon him and reiterate the provisions of that agreement. There was some evidence given on the trial upon the inquiry whether Kenley had placed in Wilson's hands effects for the purpose of securing him against his liability upon the indorsement. That point was left in doubt. But it was a pure question of fact, has been decided by the Court sitting as a jury, and we are not inclined to disturb the decision. Per Curiam.-The judgment is affirmed with costs. J. S. Newman and J. P. Siddall, for the defendants. 1854. BELTON V. MURRAY. BELTON V. MURRAY. ERROR to the Huntington Circuit Court. Per Curiam.-Assumpsit upon a promissory note. Process was duly served. Judgment for the plaintiff by default. Monday, May Term, 1854. The record presents no question to this Court. Monday, ALSOP V. THE STATE. APPEAL from the Carroll Circuit Court. Per Curiam.-The judgment in this case is affirmed for the reasons given in Lichtenstein v. The State, ante, p. 162. J. A. Sims and Z. Baird, for the plaintiff. R. A. Riley, N. B. Taylor and J. Coburn, for the state. Monday, HOLLOWAY and Others v. THE STATE. ERROR to the Tippecanoe Court of Common Pleas. Per Curiam.-This case was before this Court on a former occasion, and was fully considered. The State v. Holloway, 8 Blackf. 45. The only difference between the case now and then consists in this: that Jenners is now shown to have been guilty of a neglect of duty as agent which might have rendered him liable over to the state, and, hence, disqualified, under the old law, as a witness in the case; but the facts (the second point of difference) before proved by him are now proved by another witness; thus placing the case meritoriously on the same ground it stood upon before. The decree is affirmed, with 5 per cent. damages and costs. Z. Baird, for the plaintiffs. SWOPE and Others v. ARDERY. Motion by A. to set aside a sheriff's sale of a lot in Greensburg sold as the property of one F. The facts were these. B. and C. on the 9th of November, 1840, recovered a judgment in the Decatur Circuit Court against D. and E., and on the 16th of December, 1840, F. became replevin bail. On the 20th of November, 1843, the auditor of Decatur county recovered a judgment against F. On the 16th of November, 1843, G. and H. recovered a judgment against F., which was assigned to A., and on the 23d of the same month, a mortgage on said lot was foreclosed, given by F. and wife to G. and H., dated June 22, 1842. Executions on the several judgments were in the sheriff's hands at the time of the sale sought to be set aside, and the sale was made on all the executions at once, though the sheriff's deed recited only the judgment, execution, &c., of B. and C. The judgment of B. and C. was not affected by any appraisement law, but the other claims were affected by the appraisement laws in force in 1842-3. The lot was worth 800 or 900 dollars, but was struck off at the sheriff's sale at 80 dollars. It appeared that the price was the only fund accessible to discharge said liens. Held, that the judgment of B. and C. was the first lien on the lot, and the other judgments and the mortgage were a lien according to their respective dates. Held, also, that the sale was void for inadequacy of price. A sheriff, in selling land upon execution, can receive only an unconditional cash bid. A trial without an issue is erroneous. ERROR to the Decatur Circuit Court. STUART, J.-Motion to set aside a sheriff's sale. Swope and others, defendants below, filed sixteen pleas. Trial by the Court, and judgment setting aside the sale. The evidence is all in the record. The property in dispute was a half lot in Greensburg. There were several liens upon it, and, hence, conflicting claims to the proceeds. The title, subject to these liens, was, prior to the sheriff's sale, in Martin Jameson, Sr. On the 9th of November, 1840, Abbott and Brothers recovered judgment in the Decatur Circuit Court against M. and F. Jameson; and on the 16th of December, 1840, Martin Jameson, Sr., became replevin bail. On the 20th of November, 1843, the auditor of Decatur county recovered a judgment against Martin Jameson, Sr. On the 16th of November, 1843, Polleys and Butler recovered judgment against Jameson, Sr., and on the 23d of May Term, 1854. SWOPE V. ARDERY. Monday, 1854. May Term, November, 1843, a mortgage on the half lot in dispute given by Jameson and wife to Polleys and Butler, dated June 22, 1842, was foreclosed. The judgment of Polleys and Butler had been assigned to the plaintiff below. SWOPE V. ARDERY. On these several judgments and decree, executions were in the hands of the sheriff at the time of the sale sought to be set aside. There can be no difficulty about the priority of lien among the judgment creditors. It is a simple matter of dates. The judgment of Abbott and Brothers, rendered in 1840, is the first. The mortgage of Polleys and Butler, dated June 22, 1842, stands next. The judgment of Polleys and Butler, of which the defendant in error was the assignee, is last. It appears by the record that the sale was made on all the executions at once, though the sheriff's deed to the purchaser recites only the judgment, execution, &c., of Abbott and Brothers. The lot was worth 800 or 900 dollars. The sum for which it was struck off at sheriff's sale was 80 dollars. The judgment of Abbott and Brothers was not affected by any appraisement law; but all the other claims were affected by the appraisement laws in force in 1842–3. Under these circumstances it is not very clear but that the sale was void for inadequacy of price. Benton v. Shreeve, 4 Ind. R. 66. It is contended that the sheriff had a bid of 417 dollars at and before the time he struck off the half lot for 80 dollars. Robinson, the attorney of Polleys and Butler, bid that sum, coupling it, however, with the condition, that the entire bid should be credited on the claim of Polleys and Butler. There is some evidence going to show that he once or twice made such bid unconnected with any condition. But we are of opinion that the preponderance of evidence is clearly that the bid was coupled with the condition. The course of Robinson in bidding now with, and then without the condition, was well calculated to confuse the officer, and perhaps justify him in disregarding it alto 1854. gether. The bid with the condition was wholly inad- May Term, missible. It is well settled that the sheriff can receive only an unconditional cash bid. Chapman v. Harwood, 8 Blackf. 82. There is, therefore, no ground for setting aside the sale on the hypothesis that there was a higher and better bid. On other grounds, however, the judgment of the Court below in setting aside the sale was correct. The price, considering the situation of the property, the liens for the discharge of which it appears to have been the only fund accessible, was inadequate. And this being a direct proceeding to set aside the sale, reached irregularities which it would have been unavailing to assail collaterally. But there is a defect in the proceedings to set aside the sale, fatal to the judgment below. Though there were sixteen pleas filed, the record does not show any replication—any issue either of fact or law. A trial without an issue is erroneous. Mahan v. Sherman, 8 Blackf. 63.Crist v. Crist, id. 574. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. J. S. Scobey, for the plaintiffs. J. Robinson, for the defendant. MILES V. THE STATE. MILES V. THE STATE. An information for retailing spirituous liquor without license, which does not June 5. APPEAL from the Tippecanoe Court of Common Pleas. Monday, STUART, J.-Information for retailing spirits to one Jacob Walker. Motion to quash overruled. The objection taken is that |