Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1852-06-10

Court.
This was an action of assupsit brought by Smith
against Conkin for money paid, laid out and expended
Trial by the Court and Judgment for the plaintiff
There was evidence tending TO prove that certain
rent due to Smith, the plaintiff from tenant, who had
occupied certain real estate oil Smiths, had been I'M
properly received from the tenant by Conklin.
BLACKBOARD, j., held
That If il be admitted that Smith has legal claim
against Conkn for the money received by hlm II cannot
be recovered in this action for money paid The proper
form of action would be for money had and received
To sustain count for money paid and expended there
must have been payment oil money by the plantih 10
third party at the request oil the defendant, express
or implied, promise, express or implied: to repay
the amount.
Judgment reversed with costs.
H. MORGAN o. THE LAwRENcEBURGH Insurance
CoMPANY.-Error to the Dearborn Crcuit Court.
This was an action OF assumpst brought by the
Iawrenceburg Insurance Company against Morgan,
upon five promissory notes alleged to be executed by
him. and which appeared to have been executed by Nor
gan and Swift Pleas: Ist That there not, at the
time the suit ed any such corporation IN
existence the plaintiffs ID. non-assumPs Demurrer
the first plea which was sustained and general issue
the second On the trial of the issue the notes were
objected the ground of variance and the objection
tion overruled. Judgment for the plaintiff
BLAcKFoRD, J., held
plaintiffs corporation when they commenced
the suit they must fail IT, by persons giving note to
party corporation, he is prevented from denying
thar, when the given there such corpo
did not exist when the suit commenced.
2d. That there is variance between the notes IN
evidence and those described in the declaration. The
notes Joint and several and not necessary that
the declaration should notice that Swift had executed
them. They were the several notes OF the defendant
and could be declared if he alone had signed them
Judgment reversed with costs.
ILL., SMITH .. Hazard d al-Error 10 the Tippe-
canoe Circuit Court.
indebitatus assEmpsit, by ID. b. Smith and G. :. Haz-
zard agains! II. b. Smith, Two counts--one for goods
sold and delivered the other for money had and received
Verdict and Judgment for the plaintiffs.
The defendant objected to the iudgment-1st That
the deposition of Chas f. Baly should have been sup
pressed 2d. That notwithst anding change of
ordered the cause was tried by the that
made the order 3d. That the evidence does not sustain
the verdict
BLACKBOARD J. held
1st. That it immaerial whether the motion to
suppress Baieys deposition correctly or
not, the deposition read on the trial
ID That, as the transcript shows that after the order
for 4 change oil made, the remained IN
the court in which the order made, and con-
timed from term to term for several terms and as the
parties finally appeared and submitted their cause 10 the
jury upon whose verdict, the Judgment now IN question
rendered, the defendants, therefore, waived the
right OF removing the cause under the order.
3D. That there not the slightest to doubt the
sueeney Of the evidence 10 sustain the verdict one
witness gave in evidence that he heard the defendant
acknowledge that he had purchased and received the
goods, and owed the plaintiffs the money, for which the
suit was brcught.
Judgment affirmed with six per cent. damages and
costs.
". WEsT q. CHAsE.-Enor TO the Elkhart Circnit
Court
Bill in ehaneery by Chase against West. TO compel
the latter TO convey the former certain LOT IN the
town OF Ekhart. The lot sold to Chase, who was
potter by trade by West, for $50 dollars in potters
ware. For the payment of this sum, Chase gave hive
notes, due at different times of 80 dollars each. The
FIRST three paid they became DUE and when the
two latter became due Chase aside in ashop in Elk
hart county, potters sufficient to discharge the
notes, but there 10 receive IT, Decree Tor
the complainant.
The only difficulty in the decide, from the
dispositions, whether the shop which the ware was
set aside, the place where Chase carried on his
business.
BLACKBOARD, j., held
That the dispositions sufficiently proved that the shop
mentioned the complanants place of business, and
that therefore, when the set aside it became
the property of the defendant Chase, consequently
must be considered having done all that the law
CURED in order to fulfil his part of the contract.
Decree affirmed.
V.-SPANGLER and SPANGLER q. McDANIEL.-Error
to the Boone Circuit Court
Assumpst by c. and G.. Spangler against w. Me-
Daniel. Mcdaniel owed the Spangers nifty seven dol
and fifty cents, in payment Of which he gave them an
order for the amount James A. Dunlap. Dunlap
died before the Spangers presented the order and they
presented it TO his executor, who refused TO accept be-
cause Mcdaniel had withdrawn all his funds IRON the
hands Of Dunlap before his death The defendant plead
ed assumpsit and non-assumpsit within six years
Judgment for defendant.
That the order described in the declaration Drna
facis acknowledgment that the named in il
due from Mcdaniel to the Spanglers, and the onn-
dalton Of action; and being a written acknowledge
ment, in legal effect, of debt due from the draws
took the debt of the of limitations. Me-
Daniel having drawn his funds from the hands of Dunlap
before the order presented for payment, was not
discharged from liability because oft delay in present
ing the order and the lack of notice OF its nonacceptance
and non-payment. Judgment reversed.
V.-LUNN 9. THE STATR.-Error to the Judgment oI
Hon. Alvin p Hovey in VandeTbmgh County.
John W. Lunn, indicted for murder, and confined in
jail in Vanderbugh county rpettoned, in vacation the
president Judge Of the fourth judicial crcnit for writ
Of habeas corpus enable him to give BAIL The writ
ordered, and the Sheriff returned the cause oil
Lunns detention the indictment Of the grand Jury oil
Vanderburgh county, charging him with murder in the
first degree, and proper mttimus directed 10 the aor
Lunn's counsel then asked the Judge let him bail
and offered adduce proof that the grade Of offence OF
which he was really gully was baable, but the Judge
refused to permit such proof to be given and remanded
the prisoner to custody. The prisoner appealed, and
contends that though presented by the grand jury he
had right TO go behind the Indictment and prove the
Indge that the offence Of which he really guilty
baabe one and that, upon making such proof he was
entitled to bail
That the decision of the Judge below was in accor-
dance with the English authorities, and must be affirm
ed unless statute has changed the English rule.
The provisions Of the kabeas corpus Of this State
authorizes the Judge hearing the application, to cause
notice in writing be given the party interested in
resisting il, his attorney TO witnesses to tes
tify in the premises and to fully investigate the case
therefore, the objection Of the English Judges that they
get the evidence necessary to the correct
derstanding OF the law does not apply here As under
Indictment for murder in the first degree, the person
charged may be convicted OF minor offences, such in.
dctment should be taken conclusive OF the grade
Of offence in determining the question of bail.
Decisions below reversed and remanded for fur
Their proceedings
vII.-THE MADISON Insurance COMPANY o. GRIrFIN.
A roaIfr el.o IL