Snyder v. The State,. 541 Talbott v. Rudisill, 31 Stevens, Morton et al. v.. 187 Stewart et al., Smith v... 380 Stowman v. Landis,. 194 Taylor, McCormick et al. v. Southern Plank-Road Co. v. Hixon et al., 165 Taylor v. Dodd,. Spencer v. Graham,.. Spencer v. Morgan, Spencer v. The State, Standart et al., Robertson v. State, Aker v..... State, Alsop v. State Bank, Espy v. State Bank et al., The State v. State Bank v. Vanslyke,. State, Brosee v. State, Bryant v. 322 240 436 246 530 178 4 457 193 Thompson, Upjohn v... 499 212 Thompson v. Bassett et al.,. 535 274 Thompson v. Grimes,.. 385 353 Totten v. McManus et ux., 407 State, Case v.... State, Dougherty v.. State, Dutton v..... State, Finn v..... 400 Trustees of the Wabash and Erie Canal 389 Warren v. Carey,.. Warwick et al. v. The State, Wayne County Turnpike Co. v. Berry,.. 286 Wright et al. v. Wright,, Weathers et al. v. Weathers,. Weathers, Weathers et al. v. Weems et al., The Mayor, &c., of Jeffersonville v. Wheatly v. Miscal, PREVIOUS DECISIONS OF THE SUPREME COURT OF THIS STATE, OVERRULED IN THIS VOLUME. MAGRUDER V. MARSHALL, 1 Blackf. 333. WEAVER V. FIELD, id. 334. The obligor in a replevin bond can not question the constitutionality of the statute under which the bond was executed. Overruled in Strong v. Daniel, 348. CRANMER V. GRAHAM, 1 Blackf. 406. DE CAMP V. STEVENS, 4 id. 24. Where a person employed to labor for a specific term voluntarily abandons the service before the expiration of the term, he can recover nothing for the work done. Overruled in Ricks v. Yates, 115, and Wheatley v. Miscal, 142. HOAGLAND V. MOORE, 2 Blackf. 167. Where there is a special contract, one party can not perform a part of the contract, and, before an entire performance, sue and recover in indebitatus assumpsit for the part he has performed, unless he has been prevented from completing it by the acts or the failure of the other party. SWIFT V, WILLIAMS, 2 Ind. R. 365. 4. entered into a contract with B. to make a road for B. for a stipulated price. Having performed about one-half of the work, but not in the manner stipulated by the contract, he vuntarily abandoned it, and sued B. for the value of the work done. Held, that, the contract being an entire one, A. could not recover the price, or any part of it, without having first made the road substantially according to the contract, or shown a legal excuse for the non-performance. The points cited as decided in the two last-mentioned cases are overruled in McClure v. Secrist, 31, and Persons v. McKibben, 261. THE INDIANA MUTUAL FIRE Insurance Company v. COQUILLARD, 2 Ind. R. 645. The assured is not personally liable on a premium note given to the Indiana Mutual Fire Insurance Company, until an actual surrender of the policy to the company and the payment of all assessments against him for losses sustained by the company before the surrender. Overruled in The Indiana Mutual Fire Insurance Company v. Conner, 170. CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF INDIANA, AT INDIANAPOLIS, MAY TERM, 1854, IN THE THIRTY-EIGHTH CASE V. THE STATE. The clerk, auditor and sheriff have no authority, under s. 4, p. 6, R. S. 1852, to appoint a person to preside at a term of the Circuit Court, where the office of circuit judge is vacant. Those officers are only authorized to make the appointment where the circuit judge is temporarily absent. A vacancy in the office of circuit judge can only be supplied by appointment by the governor. During a vacancy in the office of circuit judge, the clerk, auditor and sheriff appointed an attorney to preside at a term of the Circuit Court in their county. The appointment was in legal form and was made a part of the record. A. was then tried upon an indictment for grand larceny and convicted; but during the trial he made no attempt to impeach the authority of the Court. Held, that a Court de facto, if not de jure, was constituted, and that A., after conviction, could not call in question the authority of the Court. The affidavit of a party convicted of a crime can not be admitted to rebut the statements contained in the record of his conviction. A new trial will not be granted to let in a defence which was known before verdict, and of which the defendant might have availed himself under the general issue. VOL. V.-1 May Term, A motion in arrest of judgment can only be granted for defects apparent in V. THE STATE. Monday, APPEAL from the Franklin Circuit Court. DAVISON, J.-Indictment for grand larceny. On the first day of the August term, 1853, of the Franklin Circuit Court, being the first of that month, the clerk, auditor and sheriff of Franklin county appointed John Ryman to preside at said term. That appointment was duly entered upon the order-book of the court, and reads thus: "We, John M. Johnson, clerk, Andrew S. McCleary, auditor, and Michael Batzner, sheriff, hereby appoint John Ryman, Esq., an attorney of the Franklin Circuit Court, being a court of record, to preside at the August term, 1853, of said court, as judge thereof; the judge of said court not being in attendance, and not having appointed any person to fill the same." These officers proceeded under an act which provides that, "if, from any cause, any judge of the Circuit Court shall be unable to attend at any term thereof, such judge, or in his absence, or when he shall be unable to make such appointment, the clerk, auditor and sheriff of such county, may appoint, in writing, any other judge of a court of record, or any attorney thereof, to preside at such term: such written appointment being entered on the order-book of such court; and such appointee shall conduct the business of such court," &c., "and shall be allowed five dollars a day for every day he shall so serve," &c., "to be paid out of the annual compensation of such judge," &c. 2 R. S. 1852, p. 6, s. 4. Pursuant to his appointment, Ryman assumed the duties of the office, and while the court was held by him as judge, the appellant was indicted, tried, and convicted. Thereupon he made and filed his affidavit, alleging that on the 28th of July, William M. Mc Carty, then judge of the said Circuit Court, resigned, whereby a vacancy occurred; that the office was vacant for the space of ten days, during which the first of August arrived, when Ryman's appointment took place. Upon this affidavit . |