The Evansville journal. [volume] (Evansville, Ind.) 1866-1870, 1870-07-25

nelling and sWeariDgs the Grand Jury
which returned the bill.
Sawyer vs.. the State, IL Ind, 435,
and the cases following 1t, u Ind,
42S, q Ind. III, 268; oVerruled.
Besoher VS.. the State; appeal from
the Wayne Criminal Court. Affirmed.
Gregory, G. j..
Criminal Law-Once an Jeopar3y,
A criminal cause was submitted to
the Court for trial, and the Judge,
after hearing the evidence, took the
case under adyisement on the 10th OF
December, but. without a finding
died on the 18th of April following:
Held, that this did not work a dis
charge of the defendant.
Same LQu0r LdU - EUldence-
Sdle-Barter.-On the trial of an in
dictment for selling intoxicating IL
quor without license, it appeared In
evidence that the defendant being IN
debted to a certain person for work
done, such person received the liquor
in question upon the account for SAID
work, there having been no agree
ment that he should work for liquor.
Held, that this evidence justified a
finding that the transaction was a
sale, and not a barter.
Switzerland ct al. VS.. Venard ct al.
Appeal from the Pulaski Circuit
Court. Affirmed. Elliott, j.
Pracdce-Failure to reply WAGER.
1t is a settled rule of practice In this
State, that where the defendant takes
no steps, before trial. to compel a re-
plu % - o4z-1- I'D Inaz not aGk
for a judgment for want of q reply,
but voluntarily goes to trial, be there
by valves the reply, and is is regard
ed as c~ORsenting to go to the proof OF
the answer as If denied.
C0sts-Where, in an action for dam
ages solely, not arising out of con-
tract, the plaintiff RECEIVERS damages
to the amount of five dollars or more,
he is entitled to judgment for full
costs.
Thompson VS. Bragg ct. al. Appeal
from the Hamilton Circuit Court.
Affirmed. Ray, Judge.
IaJunctiOn-Sherif SGle-ApprGls-
ment.-Application to eDjoin a sheriff
from proceeding with a sale of certain
real estate on an execution issued up
on a judgment against the plaintiff,
subject to the appraisement laws, the
complaint alleging irregularity in the
appraisment. The court set aside the
irregular appraisement, and ordered a
new one to be made, and then dis
solved the restraining order which
had been issued.
Held that there was no error.
COURT OF COMMON PLEAS.
Hon. Solomon Blair, Judge.
The National State Bank of Lafay-
cite vs.5Wm. G. Smock.
This was a suit against Smock as
endorser on a certain note for $1,000,
payable at the Indiana Banking Com
pany, given by VIM. NJ. Jones to Sam
uel Q. Vance for his interest in the
firm of w. NJ. Jones & Co. The note
was transferred to the plaintiff before
maturity.
The defense was the intention to
induce Sm0ck to become security on
the note. Vance had told him the
firm was worth $500, when in fact it
was wholly insolvent.
The case was submitted to Judge
s. Blair for trial, who yesterday
morning read a very elaborate and
learned opinion.
After setting forth the issues Joined,
and stating the enclosed in detail, he
said:
1T is q we'll settled rule of law
that where a personal communication
Is held bet ween a creditor and a sure
ty before the contract of surety is
entered into, it is the duty of the
oro1Tkor "a n,aIro n fall faSr I'D ~
est communication of every circum-
stance calculated to influence the dis
erection of the surety In entering into
the required obligation"
"Unasked, he Is bound to give all
the information II his power, to ena-
BILE him to estimate the character
of the risk he is invited to under
take" Owen v. Homan, 3 Eng, l..
and e. 112.
"Ifa fact materially affecting the
nature of the contract is misrepre-
scented to the surety. or concealed
from him with the knowledge and
consent Of the creditor, the surety
to be liable Adams.
Eng, 1S9.
Ia the ease of Pidock VS.. Bishop,
2 3. and O., COS, there does not APP
pear to have been D communication
between the surety and creditor, and
yet it was held a failure of the cred
itOr to communicate certain material
facts connected with the bargain to
the surety releases the latter.
In the case of Stone vs.. Champion,
8 Bing.. N. O., 142, there was a failure
the part of the creditors agent to
communicate the fact that the note
being executed was partly for an old
Indebtedness, the surety being led, by
the recital In a mortgage read by the
agent, to believe that it was all for
money at that time advanced to the
principal; and, although there was no
suggestion of intentional fraud, it was
held a fraud in law, which relieved
the surety.
The case at bar is stronger than
of the preceding cases. For
here the parties were brought to-
gether, the creditor standing in such
relation to the entire transactions
being the book-keeper and account
ant, that the surety might we'll rely
upon his assurance, q" that he did not
see how there could be less than
about $1,000 in the business, and that
the debts were merely nominal" On
point the Court further cited
Matlook VS.. Todd, 10 Ind, 100;
Woodruff vs.. Garner, q Me-, A, q;
N. Y, 238; 81, Ind, 50, 81; N. Y,
518; IL Me-, 375.
Holding that the surety was re-
leased unless the bank took the note
for value in good faith, without no.
tice of the fraud.
The evidence showed the agreement
to purchase the note was made with
the President 1t his house, in the
evening, after bank hours, but be
says: He supposed there was some
legal point or other" making it i'm
DOrfant for Veuoa 70 frapSfer tho