1854. DOWNS V. Nov. Term, Trespass for breaking and entering a close is a local action. It can only be brought in the county in which the premises are situated. Their locality ought therefore to DONNELLY. be proved as they are described. 2 Phill. Ev. 136.-Ham v. Rogers, 6 Blackf. 559. In Roach v. Damron, 2 Humph. 425, it was decided that "the land upon which the trespass is committed must be proved to lay in the county in which the action is brought. This defect in proof will not be cured by verdict." We think that in this case a new trial should have been granted. Per Curiam.-The judgment is reversed with costs. H. Craven and W. R. Pierse, for the appellant. Thursday, Downs v. DONNELLY. Money voluntarily paid, under a claim of right, with a knowledge of the facts, but under a mistake of law, can not be recovered back. APPEAL from the Posey Circuit Court. DAVISON, J.-Assumpsit by Donnelly against Downs, before a justice of the peace, to recover a sum of money alleged to have been paid through mistake. The justice gave judgment for Donnelly. Downs appealed. In the Circuit Court the cause was submitted upon an agreement of facts. They are these: Downs, with others, as security for one David Ross, signed the following note, viz.: "Twelve months after date, we or either of us promise to pay John Stallings, administrator of Wright Stallings, deceased, 91 dollars and 87 cents, for value received. [Signed] David Ross, Moses Stallings, Henry Stallings, D. Wilson, Howell Downs." Ross died, leaving the note unpaid. After his death, 1854. Downs V. judgment was recovered on the note, upon which Downs, Nov. Term, in the year 1837, paid 20 dollars, that sum being his part of it. During the lifetime of Ross, the administrator of his wife's father retained in his, the administrator's, hands DONNELLY. 30 dollars of her money to pay on the note. When Ross died, he left with his widow about 40 dollars' worth of personal property. No administration was ever taken on Ross's estate. In the year 1851, Donnelly and the widow of Ross became husband and wife. After this Downs called on Donnelly for the payment of the 20 dollars, with interest, and threatened to sue and compel him to pay it. Donnelly, in reply, said that the law that would force him to pay the money would be very unjust, but rather than be sued and compelled, he would pay it; and for that purpose he would, on the next day, meet Downs at Alfred Hardy's house. Accordingly the parties met, when Donnelly paid Downs 30 dollars. To recover that sum this suit was instituted. The Court found for the plaintiff below. A new trial was refused; and judgment given upon the finding of the Court. The record shows that the payment by the appellee was, in legal acceptation, voluntary. No fraud appears in the transaction. His right of recovery is exclusively based upon an alleged mistake. If that was a mistake of law, it is fully settled that proof of such misapprehension will not enable the party to recover back money voluntarily paid under a claim of right. The construction of law is open to both parties and each is presumed to know it. No doubt an action can be maintained for money paid, under a mistake on the part of the payer of a material fact; but still, it is incumbent upon him to make affirmatively a clear case. No such case is presented by this record. The facts requisite to a full understanding of the nature and validity of the claim paid by the appellee were all before him. When money is paid under circumstances like these, it can not be recovered back. It would be easy to cite authorities; but the principle is too familiar to require it. VOL. V.-32 Nov. Term, 1854. LASURE V. CARTER. HOVEY, J., having been concerned as counsel, was ab sent. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. A. P. Hovey, for the appellant. Thursday, December 7. LASURE and Others v. CARTER, Administrator. An administrator, under the R. S. 1843, was authorized to admit the justness of claims filed against the estate. It was competent for the Probate Court to correct an error in the description of land, in an appraisement made under an administrator's petition to sell real estate. ERROR to the Switzerland Circuit Court. Per Curiam.-Petition by an administrator to sell real estate to pay debts. The heirs were duly made parties, and answered, and a sale was ordered. The principal question made is upon the right of the administrator to admit the justness of claims against the estate. We have no doubt on this point. The statute of 1843 expressly authorized him to make such admission, even in Court. Claimants, also, might be sworn. By the code of 1852, this power of the administrator was taken away; but the complaints occasioned thereby, on account of the costs of a trial upon every claim, induced the legislature of 1853 to attempt to restore the power. Laws of 1853, p. 51, sec. 7. Any error in the description of the land appraised for sale, in the report of the appraisers, could be corrected below. We discover no error in this case. D. Kelso, for the plaintiffs. UPJOHN V. THOMPSON. ERROR to the Decatur Circuit Court. Per Curiam.-Suit upon a note. Pleas, the general issue and payment. Trial, and judgment for defendant. The case is here upon the weight of evidence. We can not reverse the judgment upon it. The judgment is affirmed with costs. DAVISON, J., having been concerned as counsel, was ab sent. A. Davison, for the plaintiff. Nov. Term, 1854. BRECOUNT V. THE STATE. Thursday, BRECOUNT V. THE STATE. To sustain an action for a nuisance, under s. 17, p. 89, of the acts of 1853, it is necessary to show that the defendant had the control or ownership of the house, &c. APPEAL from the Montgomery Court of Common Thursday, Pleas. HOVEY, J.-Information for a nuisance, under the 17th section of the acts of 1853, p. 89. The defendant pleaded not guilty, was tried by the Court, fined 10 dollars, and appealed to this Court. The information states that the south room of the building situate and being upon Green street, in the town of Crawfordsville, in the state of Indiana, known as Mc Cullough's ten-pin allies, is a place wherein spirituous liquors are sold and bartered, without license, in a less quantity than a gallon, &c.; and that Abram V. Brecount was, on the 23d day of June, 1853, guilty of keeping or maintaining such nuisance. The information is very defective, but there is only one point properly raised by the record for our consideration, December 7. Nov. Term, and that is whether the evidence is sufficient to sustain 1854. HODSON V. MACY. the judgment. Two witnesses only were examined. Alfred Woodruff, on behalf of the state, testified that on or about the 23d of June, 1853, he went into the house in Crawfordsville known as McCullough's grocery, and called for a pint of whisky; that Brecount filled his bottle, which held a pint, gave it to him, and that he paid him for it, and that he never got or knew of his selling any before. Joseph Mc Cullough testified that he was the sole proprietor of the house in which the liquor was sold, and that Brecount had no interest in the house, or the liquors kept in it, and that Brecount had never been employed as a bar-keeper to keep it, &c. Mc The evidence does not sustain the information. Cullough's grocery and McCullough's ten-pin alley, are not shown to be the same place. To sustain an information for keeping such a nuisance, it is necessary to show that the defendant had the control or ownership of the house. It is proven that Brecount had no interest in the house or liquors, and was not employed to keep the same. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. L. Wallace, for the appellant. A. V. Austin, for the state. Thursday, HODSON, Administrator, v. MACY. Section 66, p. 261, 2 R. S. 1852, gives the Court the discretion in making the allowance of claims against estates, to examine the claimant upon oath; but this section does not apply to regularly instituted suits at law. APPEAL from the Henry Court of Common Pleas. HOVEY, J.-Jonathan Macy filed his complaint against Hodson, administrator of Henry Macy, deceased, claiming 934 dollars. The defendant answered the complaint, the |