Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1849-07-26
SUPREME COURT OF INDIANA.

REPORTED BY ALERT c PORTER. AND HoRATI' C. New
COMB, E~eRs.
Coon er part. Error TO the Montgomery c. C.. affirmed.
Patrick t al. Q. BurrOtvs e, al. Error to the Madison c.
c. Affirmed.
Goddard Z. Ross APPEAL from the Adams C c. Affirmed.
Sloan ct al =. BurdseH ct al Error to the Way ne c. c.
Petition for rehearfng OUerruled.
Warden ct al. . Dundas et al. Assumpsit. Error to the
Switzerland c. C.. Affirmed.
SMITH, J An instrument Of writing signed by A; as
Of the other pat. Is not sufficient, without evidence aliuade,
to prove a contract declared upon as a CONTRACT between b.,
c. and d., the plaintiff, and E and F" the defendants. Re
rersed Reinanded for a new trial. ]. t. Brown and +
Dumont for plfs.
Dunn =. Sparks A-sumpsit. Error to the Dearborn c C.
Smith, j. a discharge ia bankruptcy il not a bar 10 an
action brought by one co-su ETY. against another fpr conlribu-
lion. when the entire debt e the p incipal, for which the
parties hi5gant were bound as sn,e'iss was paid by the
Remsnaed for a new trial. j. Ryman for plf, d. Macy Er
deft.
Allen Z. Chadsey. Error to the Pa,ke c. C.
PERKINS, J. A judgment Of a justice against a defendant
is a nunity unless tho defendant had actual OF constructive
notice Of The suit. or appeared to it. Anderson v Miller, 4
BlaekfoTd, All Barkeloo v. Randall, id. 476; Smith v. Ny
ers, D ia. 223.
A plaintiff having shown a fact to his prejudice in at
tempting TO prove his case, cannot object 10 the evidence by
which il was proved. Reversed. E. w. McGaughey for
plf, J. A. Wright for def.
Streeier .. Henley. Assumpsit. Appeal from the Della
ware c. c.
BLACKBOARD, J. To a suit upon a note given to secure the
purchase money for land conveyed by a warranty deed, a
plea relying on a breach Of the covenant against incum-
brances, which docs not show The del<ndant to have been
injured by the membranes, is bad. Whistler v. Hicks. 6
Blackf0ri, 100 Smith v. AckeTman, id. 54l Clark Y. Smell
ling, at this term
Where a trial of a cause has been had upon the general
issue, the cause sill not be reversed By The Supreme Court
on account Of The improper everything Of a demurrer TO a
special plea, If the facts set forth in such plea Were admiS-
sihe in evidence under The general issue. Shanklin v Cooper,
s BlackfOrd, Al.
Where there is but one contract-as in this case, To pay
$50 on a certain day. in a horse aud cash noies-there can
be no legal tender. in such a case, but Of the " hole that is
due. Chapman on Contrac 8. 40; Pothier on Obligations. Nos.
49S. 499 Heskett v. Fawcett, IL Mees. and Welsh. 356 per
Psfke, b.
In a suit upon a note given for a sum Of money-payable
a certain time, in pat in cash notes-a tender Of such notes
BY the defendant, without an Endorsement or offer 10 iDdOTse
the same, is not a legal tender as to such part.
In an action upon a note payable in property, il is not ne
cessay for the plaintiffs, under Gus statutes, 10 set out in his
declaration the consideration Of the note r. s. lS43, PIP.
576, ST.. See Nichols v. Woodruff, s %BllckfoTd, 1913. Re-
Uersed. Remanded for new trial J. L. Sample for appel
LIANT. Walter March for appellee.
This case was reported on the 18th Of June since which
time the court has reconsidered it, and enlarged the opinion
then given.-REPS1