Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1851-06-26
Supreme Court Decisions. Nav Term. 1851.
GnrroarrD SENTINEL eoDrns, ESQ

lREPORrrD SENTINEL coBrRS, Eso
Il THURSDAY, May %, 1851.
Calhoun v. Darts. Error. Laporte c. c. SMITH
j. Debt by Calhoun against Davis. a note executes
by the latter Castell, and by him assigned {
plaintiff Plea: that the note was not TO be payable
unless the payee should the sale, under deere
which had ben previously rendered, OF tract of LAM
purchased by the payor at the time the note given
to be suspended until certain day. and that the sal
was not suspended. Observation-Disclosures theret
sustained. Judgment for defendant
Held That the plea is bad, il does not alledge
OF consideration but sets up verbal contemporaneou
agreement that the note was only to be payable on
contingency. Such defence is valid against notI
drawn payable without condition. The consideration
being the land the failure of the payee perform suol
collateral agreement would not make the note void
Judgment reversed
Thorp v. Crane, ct al. Appeal Allen c. C.. SMITH
]. Appeal dismissed for the want of Jurisdiction.
The State er rel Mckinney v. johnson Error. De-
eatur Z. c. Rule for costs made absolute and writ o.
error dismissed
Exams v. Seerest ct al Appeal, Putnam c. C. APP
peal dismissed for Of prosecution.
EDans v. Secrest st al. Appeal, Putnam C. c. Ap-
peal dismissed for wsnt of prosecution.
HameTsiy " Clark. Admir-. of Hamersly Error
Martin c. c. Error confessed. Judgment reversed,
FRIDAY, May 3Oth, 1851.
POlrelL v. the State. Appeal, Wabash c. c. SMITH,
Indictment for malicious trespass, in destroying or
nJuring saw log, the property of one Grove Judg-
ment for the State.
Held That the evidence does not sustain the indict.
ment- not being proved that the log the property
of Grove. Judgment reversed.
Clark ef al v. Dunlap. Appeal, Jasper c. c. SMITH,
j. Debt. Commenced before Justice. The cause Of
action filed in the Of Clark, Stanley & Co.
Before the trial, defendant moved TO dismiss, the
ground that the declaration did show that the plain
tlhs were the persons composing the firm OF Clark,
Stanley & Co. Motion overruled. Judgment for plain
tifis. Certorari. Circuit Court set aside the judg
ment and dismissed the suit
Held, That The statement of the demand before JUS
tice need not set out the entire individual of the
firm That II is necessary prOre the trial that the
plaintiffs were the persons composing said firm. Jndg
ment reversed.
Noble " Tiflotson ct al Error Wayne c. c. SMITH,
j. Assumpsit, upon note, given by Noble for clock,
which warranted. Defendant before trial filed
bill of discovery against plaintiffs to obtain proof OF the
warranty &C. At subsequent term he filed an affda-
Wit for continuance of the action law stating amocg
other that he could not safely enter upon the
trial without the testimony Of the plaintiffs that he
had caused subpoena to be issued ;" &C. Upon the FL
ing OF the affidavit the attorney of the plaintiffs appear
ed but they failed to appear in person. the defendant
moved the take his bill confessed make an
order to have the plaintiffs examined suspend proceed
ings till they appeared. OyerTuled.
This right. No steps having been taken to procure
the attendance of the plaintiffs the subpoena being is
sued in the chancery suit these motions might have been
proper in chancery, but not in the suit at law Judg
ment affirmed.
Coolsyv Harper. Error Delaware c. C. SMITH,
]. Motion to have the executions issued upon two udg
mentS aside alleging satisfaction; protert made
release; further cause, that executions had been IS
sued, sufficient personal property levied on, that the
levy remains undsposed Of the returns belng-propery
not sold, for want of bidders Plea first. That the
release was obtained by fraud" Second. THAT said
executions were issued in and FORM" sc.
Third and fourth. fThat the property levied
left by the Sheriff possession of the execution defend
ant; that the Sheriff took delivery bond that said
Cooley had used and disposed of said property for his
own purposes and that none of 1t had been applied to
the satisfaction of the judgments" Demurrers to the
third and fourth pleas overruled and judgment thereon
Trial upon the issue upon the plea of fraud. Judgment
for defendants Error assigned is the oyerruing OF the
demurrers.
Held That if after property is levied on the Sheriff
fails to keep safely he is liable to the execution plain
tiff that he may make person his agent TO keep tins
property his risk far the execution plain
tiff is concerned; that he may make the execution de-
PENDANT agent and if he he delendan dposes OF II or
loses 1t, this IS sufficient disposition OF the levy to au
thorze the issuing of execution. This would pre-
circuy OF actions if the Sheriff should be required
to satisfy the plaintiff the execution defendant would in
his turn be liable to the Sheriff. The overriding of the
demurrers was proper Judgment affirmed.
Johnston ct al v. The Wabash College &c. Error TO
the Warren Probate Court. PERKINS ]. Debt, upon
the following note 1850. Warren County, March o.
Manual Labor. College and Teachers, Seminary fifty
dollars five years from date with interest payable
nually, on the first day ofFebruary JAMES JOHNSTON"
Judgment for plaintiff. This note was given towards
the endowment of the Presidency of said College, and
repair damages by fire to the buildings.
Held, That this is good and valid consideration for
the promise to payit Judgment affirmed, with per
cent. damages
Doe er dem. Hosier v. Hall. Error Wells C. c.
PERKINS, j. Ejectment. Judgment for defendant,
who claimed unter Sheriff. deed, dated the 18th Of
October, 1874, and recorded in the month Hosler
claimed under deed dated Dec 14th, lS4l, executed
in Ohio, and recorded July lith s4o in Wells county
Indiana.
Held That under the Statute of lS43 requiring every
conveyance of real be recorded in ninety days
after execution the defendant is purchaser without
notice, Notwithstanding the Statute of 1888; force
when the deed Of the lessor Of the plaintiff made did
not make void, as subsequent purchaser. unre
corded deed executed in another State That this deed
should have been recorded within ninety days after the
law of lS43 requiring conveyances to be entered of
cord, came into force. Judgment affirmed.
Skianer ct al y Deming Ell al. Error. St, Joseph {.
C. PEaKINs J.
Bill in chancery by Deming ct al. praying that pro-
ceedDgs on judgment at law be enloned The bill
shows that Deming surety note for $500 given
to the Huron River Bank, which in Michigan; for
bills that amount loaned by said bank that Skinner
recovered judgment said note; that said Bank is
au illegal institution; that the notes borrowed were
worthless; that plaintiffs ignorant that the bank
ing law was unconstitutional. Perpetual injunction
granted.
Held that this bill does not make out a case in which
the court is bound to grant the relief prayed The pa
per borrowed of said bank answered the purpose OF the
borrowers since more than years afterwards they
confessed judgment the note without objection. A
Court of Chancery will not relieve against Judgment
contrary to equity where defence existed which might
have been set up law unless the failure set il up
was unmixed with fault negligence the part of the
defendant such judgment. Ignorance OF a. defence
constitutes excuse for not setting It up where 1t con-
sists the public statutes and journals OF State Gov
eminent under which the transactions took place De-
cree reversed.
wilson and Wife v. Cassidy st al. Appeal Union
G.. c. PERKINS j.
Bill in Chancery by Wilson and wife to procure tho