Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1852-01-01

formance Of his duties and that some of the breaches
being good the demurrer correctly overruled II
was a general one the whole declaration.
q That the statute Or. s. p. 79l authorized the as
sessment of damages be submitted to referees, by
Of parties after interocutory Judgment had
been entered
g. That the court below properly rejected, when Of
fered to be shown evidence, report Of kintner
showing settlement of his accounts with the several
townships, because proof OF the items It contained
ought 10 have been mode.
& That no objection could be made to the award be-
cause it also contained the amount Of damages assessed
in two other suits against kntner as school commits
soner the parties having submitted to the referees an
adjustment Of the accounts in those suits also
s. That the circuit court in rendering up their Judg-
ment the award properly allowed interest on the
amount awarded, from the time the award was made to
the date Of the Judgment.
Judgment affirmed &C.
Kenworthy IS John and Arthur Tullis. Appeal
rom the Tippecanoe common pleas
This was an action Of trespass against the defend
for digging mill race and erecting mill on lhe
land Of the plaintiff. Judgment for the defendants
In 1891, Hockett under whom the plaintiff claims IL
tie, executed deed for mill privilege to hser TO
whom the defendants heirs The question ralsedls
whether the deed conveyed to Kser iye esfqte only
fee simple. II vas ucged by the plaintiff that the
words necessary to convey lee simple are wantnS IN
the premises and the hGbeRdum and tenendum, anu nat
the described in those parts cannot be enlarged
by words Of inheritance used in the eorenants or rdran
tees.
Judge
That these words used in the premises sufficient
to convey n fec simple namely " The said Moses
Hockett doth hereby bind himself bis heirs &C., to rati-
f and confirm to the said Lewis kser his hers and as
signs the aforesaid privileges" &C.; the words rafyy
and confirm being used in reference to the estate
in the thing previously granted but to the
privilege to enter upon the land, &c:
2 That from examination OF the whole lnstru-
ment there difficulty in determining that IT was
the intention TO convey fee simple.
Judgment affirmed
fha
The defendant was indicted for extorting IS cents
from Michael Owen. AT the time OF the extortion, Bur.
ton was treasurer Of Franklin county, and he claimed
this amount as fee due him for constructive levy oil
the goods of Owens for the nonpayment of taxes.
II was contended that the statutes authorized the
treasurer to charge the fees, a constable might
for levy and return and the had been paid
by Owens until after the ls day Of January levy and
return would be presumed, although not actually made
under the decision Of Roopv The State 1st Blackboard
323.
Judge SMITH held:
That the referred to not analogous, for
there the constable had received execution, had Wis
tied the execution debtor, and collected the money! but
in this case nothing had been done by the treasurer
cept receive the duplicate and the of
The 59h section Of the revised statutes page 2S gives
the treasurer the right to additional compensation
his regular per centage all moneys collected only
when he has performed actual service.
Judgment reversed cause remanded, &c.
Bennett The State Error to the Ripley Circuit
Court.
The defendant was indicted for murder in the Deca-
tur Circuit Court and tried in the Ripley Circuit
Court. Verdict of guilty and Judgment accordingly
The points urged for reversal OF this judgment will be
from the questions decided.
Judge BLACKBOARD held:
L. That the indictment properly concluded in tho sim
guar-" against the form OF the statute" although
two acts had been passed to the mode Of furnishing
the crime charged, namely prescribing the punish
ment Of DEATH the othsr death confinement for life
in the States Prison. Blackf. 1873.
n ~ H. IF
had the Decatur Circuit Court did net show that
order had been made granting change OF venue to the
Ripley Circuit Court, yet the following facts Of record
sufficiently show it. Firsf-The filing of the tran
script the indictment and other papers the cause by
the Clerk of the Decatur Circuit Coar in the Office OF
the Clerk of the Ripley Circuit Court and the recog
nzng Of the witnesses in the former Court to appear in
the latter. SeconS-The appearance OF the parties In
the latter Court and the continuation Of the there
until the next term, on motion by the defendant.
3 Tha, the eonrt cnnld not set aside the verdict of
the jury because they had to their conclusion
the punishment by ballot, for the reason that evil
dence Of that fact made except sninsuicent ai-
dav of of the jurors. Even If the affidavit had con-
tanned certain matter could not have been received,
because public policy will not permit individual jurors
to impeach their own verdict Term Rep. II Johns
R. 4s7, N R. 326, bowl. P. C. sos. Judgment az
frmed.
Redman rs. Taylor. Appeal from the TippccanOe
Common Pleas.
This was an action of trespass for breaking down
and treading upon The fourth plea stated that
seeding them wheat with the leave and license Of the
plaintiff and that he did unnecessary damage, &c.
The fifth averred leave and license generally The
pcation to the fourth plea stated that unnecessary
damage was committed and that the fifth dc in
juris. The jury found for the plaintiff tho issue
formed the fourth plea and assessed his damages
So 374 bat found for the defendant the issue formed
the filth plea. The judge below rendered final judg
ment for the defendant
Judge PERKINS held:
That this Judgment was correct, the nth plea being
comprehensive than the fourh and that the
below after the verdict returned properly refused
TO allow the plaintiff TO amend his replication 10 the fifth
plea.
Blanville %. Mccoy. Error the Jefferson Circuit
Conrt.
Mccoy sued Manville for plasierng done upon hi.
house. Appeal to the Circuit Court, where upon trial.
the jury returned verdict for the plaintiff for S25. The
evidence goes show that the pasteng be done
under special contract for a certain price per yard
to be completed by certain time and in workmanlke
manner; that part only done aud workmanlike,
and that Manvlc procured another person complete
IL, but amount OF damages shown TO have been
sustained by Manville by OF these violations Of
the contract.
The Court below instructed the jury that If the work
done was such Manvle could accept reject his
option, and he chose accept it, Mccoy is entitled
recover for the reasonable value Of the work.
Judge PERKINS held:
l. That Manville could not complain Of this insruc-
ton, because he had right show the he was
TO pay Mccoy for the paseriag; how much, than
that price he had been compelled pay for having
completed, and how much less the part performed by
him worth, than il would have been, il done in
workmanlike Manner &c. and to have such amount de-
Quoted from the damages found for the plaintiff Ep-
perly v. Baiy, at this Term.
2. That IL mechanic undertake do work for ano-
Their who is to furnish materials and the materials are
not good but the mechanic them by the direction of
his employer he is not answerable for deficiency in
the work caused by the defect Of the Materials other
wise, il the materials procured and used by the