Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1852-01-22
INDIANA STATE SENTINEL.
Decisions of the Supreme Court of Indiana.
NOVEMBER TERM, 1851


Court.
This was an action of trespass for digging coal brought
bY Webb against Truinger. Plea not gullty-ludg-
m fo- the plaintiff.
The defendant moved discharge juror, before he
was sworn for the that being Intercepted,
he had disclosed the fact that he related the plain
J having married the plaintiff 5 niece. The Court re-
fused to discharge him.
On the trial, the plaintiff showed, by deed, that he
had conveyed the land the defendant from which the
coal taken, but had made reservation OF the right
to excavate coal from coal banks, situated one on
either side of a creek, &C.
The defendant then offered to prove that when the
deed executed , the understanding and agree
between the parties that the coal for which this
suit brought be the defendants, and that
coal bank understood to I've a visible bank oil coal
and the entire vein. The Court below refused to
hear this testimony.
Judge BLACKBOARD held,
l. That the cause of the challenge to the juror was
sufficient Affinity alliance by marriage" Lord
Coke rema.ks, :" is principal challenge, and equiva
lent nguiny, i" &c. % As when the juror mar
ny the daughter cousin of the plaintiff" Coke Lift
q That the Court correctly excluded the parol evil
dence offered by the defendant for the understanding Of
the parties relative to the reservation, be
tanned by the face of the conveyance itself 1t not
shown that there any latent ambiguity IN the con-
veyance
Judgment reversed.
Parish and Another The State on relation oil Me
% Faddon, sc. Error the Cass Circuit Court.
Parish was Coroner of Csss county, and this suit is
brought upon his official bond, for failing to return
feri facias
The Defendants among other pleas pleaded nil debe,
which demurTed TO, and the demurrer sustained
Judgment for the plaintiffs
Judge BLACKBOARD held,
l That the demurrer was rightly sustained, that plea
being bad in a suit a bond Tate rs. Wymond,
Baekf 240.
?. That whether the plaintiff was entitled to more
than nominal damages this Court could determine,
the evidence not being set out in the record.
Judgment affirmed
Usher us CornwelI Error to the Clay Circuit Court.
This was an action Of assumpst commenced before
Justice.
The defendant Usher appealed to the Circuit Court,
and there moved to have the suit dismissed, because
the plaintiff was an infant and that prochien amy had
been appointed for him by the Justice and person had
consented in writing act E-ocea amy for the plain
tiff. The Circuit Court refused dismiss the suit.
Judgment for the plaintiff below.
Judge BLACKBOARD held,
l. That as George H. Cornwell had filed with the jus.
his written acknowledgment security for costs
the day the issued and that summons required
the defendant the plaintiff by his next friend,
George H. Cornwell he may be considered as having
been appointed such friend by the justice.
2. That it is very technical objection and one which
does show the summons nuly, to allege that
agreement in writing be responsible for costs is
an agreement of consent to his appointment pro-
CHEN amy. II is at irreguarity, which could
be waived and which waived by the defendant, who
appeared in the trial before the justice and made no OBJ
lection.
Judgment affirmed with per cent. damages
Carson Steamboat Talma. Error to the Clark
Circuit Court.
tachment issued against the Steamboat Talma. II
served upon person in charge Of the Boat but not
an officer In February, 1919, Judgment by deianii
entered against the Boat, in favor OF various cred
itors who had filed their claims bnt the damages in the
of Carson had not been assessed by jury. In
May 1S49, bond executed by Watson and two 9TH
ers payable Carson and approved by the Clerk Of the
Circuit Court, and the Boat discharged. AT the
August term, ls49, the judgment by default was set
aside for good shown and the writ Of attachment
quashed account Of the insuhcency Of the affidavit.
Judge BLACKBOARD held,
l. That the motion 10 set aside the judgment by default
did waive all objections to the attachment, because
the Judgment by default against the Boat, and
when il was discharged, the judgment could have no
effect After the discharge, the owners OF the Boat
against them could afterwards, have been rendered for
the plaintiff: Blackf. 29l An appearance 10 suit
may defect IN the process, but there are many
motions that be made before appearance and the
motion in this suit is of that kind.
q That the giving of the bond in vacation, for the
purpose OF having the Boat discharged, not waiv
er OF any objection TO the attachment: Blacki 33S
Blackf. 594. In England, the giving of bail bond
in vacation be discharged from civil suit
does not bar the defendant from setting aside the writ
for defect in the affidavit: East, 49, Otherwise, i
the bond given in time for then the defendant
had the opportunity make his motion, before giving
the bond: East, $50.
3. That the affidavit insufficient, because it did
not state the Of the person who contracted the
dcbt Blackf. 1873.
Judgment affirmed
Pate The State Bank. Error to the Dearborn Cir
cult Court.
This was an action Of assumpst on bill Of exchange
drawn by T. F. Cbeeke, at Lawrenceburgh, on f. C.
Cheeke at Cincinnati, endorsed to Pate 10y him TO the
State Bank and by sent to the Lafayette Bank at
Cincinnati for collection. 1t protested and the
tary, through the post office, Immediately to the
Cashier of the Branch of the State Bank Lawrence
burgh, letter containing notices OF The protest. ad-
dressed severay to the drawer and endorsers On the
day it received the notice Pate mailed
70 him. Judgment was given for the plaintiff below.
The only point raised to the suhcency of the
notice. The plaintiff in commended that notice
should have been given him directly by the notary and
been deposited in the post Office Cincinnati in time
go by the next mail.
Judge SMITH held,
That the course taken by the notary in accord
OF Ohio-Ohio R. 81. The residence of the last en-
dorser is the only that supposed to he known
the holder, and h all notified through such cndorser
they become liable The fact that the bill sent by
the State Bank 70 the Lafayette Bank is sufficient 10
the notices being forwarded il and the cash
Ter, having received them the day ar the protest
is proof that they mailed at Cincinnati in due time
The law requires reasonable diligence only and
able efforts made in good faith notify the parties.
Judgment affirmed, with five per cent. damages.
Sierry %. Reynolds Error to the Tippecanoe Com.
mon Pleas.
Sherry brought action of trespass against Winston
and Reynolds, who severed in their pleading. Judg.
against Reynolds for fifty dollars and Sherrr dis
satisfied with it, prosecutes this writ of
The circuit Of Carroll county issued writ Of
attachment against Sherry and others for contemp; in
disobeying Injunction awarded by it, The writ
directed to Winston, the sheriff Of Tppecanoe county.
who. in executing it upon Sherry, summoned Reynolds
TO assist him. On the trial this writ read in evil
dence.
Judge PERKINS held,
L. That this writ, although bad its face because
II could be issued the sheriff Of another county,
nevertheless properly read in evidence aid in ex.
planning the circumstances and character of the arrest