May Term, 1854. RODGERS V. MCLEARY. Thursday, RODGERS V. McLEARY. A cause having been twice continued upon the plaintiff's affidavit, on account ERROR to the Decatur Circuit Court. Gen The cause was twice continued to enable the plaintiff to procure the attendance of a witness from Boone county. At the third term the plaintiff again came forward and re-swore to his former affidavit, stating that he had had the witness subpoenaed, that he was not present, and that he could not so fully prove by other witnesses certain facts, as he could by said Boone county witness. Notwithstanding the witness failed at each successive term to appear, the plaintiff always refused to take an attachment for him. The Court refused the last application for a continuance, and the plaintiff having thereupon refused, the cause being called for trial, to adduce any evidence, the Court dismissed his suit. The Court did right. The action of the party indicated that he did not wish to obtain the witness, but to keep the suit pending for purposes of vexation. He should have had the witness attached. Besides, he did not swear that he could not, but that he could not so fully, prove the matters by other witnesses. DAVISON, J., having been concerned as counsel, was absent. Per Curiam.-The judgment is affirmed with costs. A. Davison and J. S. Scobey, for the defendant. HOUSE v. HOUSE, Administrator. A party can not object on error that an interested witness was examined at the trial, where the objection was not made at his examination. APPEAL from the Decatur Probate Court. De Per Curiam.-Proceeding by an administrator to settle an estate and to take an account of advancements. cree that certain of the heirs had been advanced, &c. The question is upon the weight of the evidence, and we think it fully sustains the finding of the Court. It is objected that Christian House, a witness proving perhaps more fully than any other the advancement, was interested; but the objection was not made when he was examined, and it is too late to raise it now. DAVISON, J., having been concerned as counsel, was absent. The decree is affirmed with costs. J. S. Scobey, for the appellant. A. Davison, for the appellee. May Term, 1854. MCCLAIN V. DOE. Friday, MCCLAIN v. DOE on the demise of MALONE. Ejectment by A. against B. for a tract of land. A. introduced patents from the U. S. for the tract, and also a lease under seal made by one C. and B. for the same land. In the introductory part of the lease, C. described himself as the agent of A., but it was signed and sealed by C. The lease contained a stipulation that B. would leave the premises, if requested, on the first of March, 1850, &c. Held, that A., by allowing B. to enter and occupy under the lease, and by offering the lease in evidence, adopted and confirmed the act of C. Held, also, that B., in the present case, was estopped by the recitals in the lease from denying that C. was A.'s agent. Held, also, that A., in order to terminate the lease, was not required to give B. written notice to quit three months before the first of March, 1850. May Term, 1854. MCCLAIN V. DOE. Friday, ERROR to the Hendricks Circuit Court. STUART, J.-Ejectment by Isaac Malone against McClain, for a tract of land in Hendricks county. Judgment for Malone. Malone introduced in evidence patents from the United States to him covering the land in controversy. He also introduced a written lease under seal, dated February 4, 1850, made by John Malone and James McClain for the same land. Among other things, it is stipulated in the lease that McClain will "leave the premises, if requested, on the first of March, 1850, in good repair and clear of all incumbrance." The lease is signed and sealed by John Malone. In the introductory part he describes himself as the agent of Isaac Malone. It is objected that this is the lease of John and not of Isaac Malone; and that as John had no title, the lease was void and the use and occupation of Mc Clain operated as a tenancy from year to year, entitling him to three months' notice to quit under the statute. R. S. 1843, pp. 441 and 817. In support of the first objection we are referred to Deming v. Bullitt, 1 Blackf. 241 and note. The facts of that case are not reported; but the doctrine held is not favorable to McClain's position. The lease was unquestionably the deed of Mc Clain; and also of Isaac Malone, if he chose to to adopt it. By permitting Mc Clain to enter and occupy under the lease, and offering that instrument in evidence as a link in the chain to show his right of possession, Isaac Malone did adopt and confirm the act of his agent John. Mc Clain was estopped by the recitals in the lease itself, at least so far as the question arose in this case, from denying that John was the agent of Isaac. Had Isaac repudiated the lease and the authority of John to make it, and turned Mc Clain out of possession before the expiration of the term, then, in the language of Deming v. Bullitt, John Malone would have been "personally and alone responsible." In a suit by Mc Clain against John Malone, under such circumstances, the case of Norton v. Herron, and the other cases cited in the note, 1 Blackf. 243, would have been May Term, 1854. MILES exactly in point. But the facts of this case present an entirely different question. It can not be seriously doubted but that Isaac Malone had a right to adopt the acts of his agent as his own, if he saw proper. The course pursued THE STATE. is, we think, in substance such adoption. Mc Clain being in under the lease, the only remaining question is, was he entitled to written notice to quit? The lease was for a definite period, at which time he was to leave if required. We are of opinion that written notice three months before the first of March, 1850, is not required by the terms of the lease. A further tenancy from year to year, on the same terms, was clearly not in the contemplation of the parties. Per Curiam.-The judgment is affirmed with costs. C. C. Nave, for the defendant. V. MILES V. THE STATE. An information for retailing spirituous liquor did not allege the price for which the liquor was sold; but no motion was made to quash, or in arrest of judgment. Held, that no question upon the sufficiency of the affidavit or information was raised in the record. Information for retailing spirituous liquor. Trial and conviction of the defendant. There was no motion for a new trial; but all the evidence was embodied in a bill of exceptions. Held, on appeal, that no question upon the evidence was judicially presented. APPEAL from the Tippecanoe Court of Common Pleas. STUART, J.-Information for retailing spirits to one Dickinson. It is contended that the same objection applies to this case as existed in The State v. Lockstand, 4 Ind. R. 554, and The State v. Hurley, id. 574. But there is this important distinction. In those cases there was a motion to quash overruled. In this case no such motion was made. Nor was there any motion in arrest of judgment. So that no question on the sufficiency of the affidavit and information is raised in the record. Friday, May Term, 1854. For the same reason the evidence is not presented for our consideration. A bill of exceptions purports to set out all the evidence. But there was no motion for a new trial. RUDISILL. The opinion of the Court below was not asked on its TALBOTT V. sufficiency. All that remained for that Court was to give Friday, HARRISON and Another v. BRYANT. APPEAL from the Porter Circuit Court. Per Curiam.-This case is similar in its facts to the case of Harrison v. Bryant, ante, p. 160, and, for the reasons there given, the same conclusion follows. The judgment is affirmed with costs. J. A. Liston and J. S. Harvey, for the appellants. Friday, TALBOTT V. RUDISILL. A scire facias to revive a judgment is not objectionable for leaving blanks for the costs which had accrued on the judgment. ERROR to the Putnam Circuit Court. STUART, J.-Scire facias to revive a judgment which Rudisill had recovered against Talbott. faulted, and judgment of revivor. Talbott was de The record shows the scire facias and the return of the sheriff that it had been duly served. |