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the rate of ten per cent. The court | Contract.—Where a party to a contract
refused to require, as prayed by the is voluntarily intoxicated at the time
complaint, that the judgment should of making it, to the extent only that
draw interest at the rate of ten per hic does not clearly understand the

business, this does not render his
IIcld, that this was not crror......Ibid. contract void or voidable, where no
3. Contract.Rcmedy.Where a per- advantage is gained by dealing with

son contracts for the payment of a liiri. Henry v. Ritenour...........136
higher rate of interest than can at
the time be lawfully contracted for,

but the law in force at the time the
rcmcdy is sought against him allows

parties to contract for the payment
of such higher rate, the latter law Of causcs. See PRACTICE, 33.
controls. Klingensmith et al. v. of partics. See CONTRACT, 8; Parties.
Rocd ..........



Release.--A. held a judgment against

B. and C. for a certain amount; B.

paid half the amount, and thereupon
1. Divorce.- Evidence.- Interroga- A. executed to him a written instru.

tories to be answered under oath incnt wherein A. covenanted that ho
by the defendant cannot properly be would thenceforth “pursue the legal
filed with the answer to a cross and cquitable remedy on said judg-
petition in an action for a divorce; ment against C. alone, and no:
and if filed and answered, the an- against B., looking to C. alone for
swers carnot properly be introduced the full and final payment and satis-

in cridence. Barr v. Barr....... 240 faction of said judgment, without,
2. l'armless Error.- Where the de- however, intending to prejudice or

fendant filed, with his answer, inter- interfere with the rights and liabili-
rogatorics to the plaintiff, which tics of said B, and C. to cach other
were answered, but the answers were on account of said judgment."
not suflicient, and the court errone- lield, that this instrument did not op-
ously refuscd to compel him to an- crate as a release of C. from liabil-
swcr; but it appeared by the record ity upon the judgment. Aylcsworth
that the plaintiff was sworn as a et al. v. Brown et al........... ...270
witness, and as such testified fully
to the facts sought to be elicted by

the interrogatories, fully supporting,
in that respect, the averments of the Of Court of Common Pleas; election

Ilcd, that the crror could not avail the
defendant. Aylesworth ct al. v.

Brown ct a'.......... .........270

Sce Arrest OF JUDGMENT, 1, 2; JURIS-

Special Vcrdict. The court, of its own Deman:l of. See PLEADING, 23, 24.

motion, required the jury, uncondi-
tionally, to answer certain interrog. 1. Interest.— Rate of upon Judgment.
etorics, which they answered with- The act of 1867, increasing the
out returning a general verdict. maximum rate of interest to ten
IIcld, that the answers could stand as per cent., when that rate is provided

a special verdict. Paine ct al. v. The for by contract in writing, does not
Lake Erie & Louisville R. R. C0.283 affect the third section of the act of

1861, cnacting, that "interest on a

judgment, or decree for money, shall

be from the date of signing until

the same be satisfied, at the rate por
cent. agreed upon by the parties in of a judgment, it is unnecessary to
the original contract, not exceeding show by averments that the court
six per cent., and if there was no had jurisdiction. Spaulding et al. v.
contract by the parties as to inter- Baldwin ....

est, then at the rate of six dollars a 4. Decedents' Estates.- Proceeding to
year on one hundred dollars.” Smith sell Real Estate.-An application to
v. Thomas......

280 sell lands in the course of adminis-
2. Same.-Suit on a promissory note, tration stands upon the footing of an

dated April 8th, 1868, and providing ordinary adversary judicial proceed.
for the payment of interest at the ing in a court of superior jurisdie-
rate of ten per cent. The court re- tion

fused to require, as prayed by the 5. Same.-- Collateral Proceeding.-
complaint, that the judgment should Where jurisdiction has been acquired
draw interest at the rate of ten per in such a proceeding, subscqucnt cr-

rors in the course of its exercise-
Ilcld, that this was not crror......

.....Ibid. as in the order of sale and its con-
3. Porm of.- Practice.- Supreme

firmation--however grave and glar-
Court.- No question can be made in ing, will not subject the judgment
the Supreme Court as to the form to successful collateral attack..Ibid.
of a judgment, where no objection 6. Same.- Pleading.- Exhibits.
has been taken below. Eaton et al. Where, in an action to recorer pos-
v. Burns ct al.........


session of real estate, the defendant
that it has jurisdiction to act as it is vey tho samc and give possession
inroked to do, and it does so act, thereof on the payment of the note.
the matter cannot be questioned IIeld, that the answer set forth a proper
collaterally ....

claims title through a sale and con-
JUDICIAL DISCRETION. veyance to him under an order of

court granted upon the application

of an adminiştrator, to make assets

to pay debts of the decedent, the

answer need not aver that a real

estatc bond was filed, but copies of
Corporation. This court does not ju- the record and the deed must be

dicially know that there is not, or exbibited as parts of the answer.Ibid.
cannot be, a corporation by the 7. Associate Judges.-Guardian and
name of the "Corporation of Leb- Ward.— The Associate Judges, as a
anon,” under the laws of this State. Court of Probate, had jurisdiction
Nic Broom v. The Corporation of Leb- on the 10th of August, 1829, to ar-

268 point guardians for infants, and such

court was a court of record. It had

jurisdiction of guardians' petitions

to sell lands. Such jurisdiction cx-
Sce CRIMINAL LAW, 3, 24.

tended to lands situated anywherc

within the State. Though the law
1. Collateral Proceeding. It is well required a bond to be given before

settled, that the proceedings of entering the order of salc, the fail-
courts of inferior jurisdiction will ure to require one would not render
be deemed of no validity unless the proceeding void. Dequindre et
thcir jurisdiction is affirmatively al. v. Williams.......
shown. The Ohio f Mississippi R. 8. Same.--Probate Court.—The Pro-
R. Co. v. Shultz....

.150 bate Court, upon its organization
2. Title to Real Estate.- Where the under the act of 1829, had authority

main object of a complaint in the to take jurisdiction of matters in
court of common pleas is to have relation to guardians and wards
satisfaction entered of a mortgage then perding in such Court of Pro-
of real estate, there is no error in bate held by the Associate Judges,
overruling a motion made by the and conduct them to conclusion.Ibid.
defendant, before answer, to transfer I. Collateral Proceeding.- Where :
the cause to the circuit court on the proceeding in a court of superior
ground that the title to real estate is jurisdiction is of such a character
in issue. Paine et al. v. The Lako that upon final action the court

Erie f. Louisville R. R.Co......... 283 should, from the nature of the case,
3. Picading.-In pleading a record ascertain wbether it is such ia fact


....Ibid. counter-claim, within the meaning
10. Same.- Residence of Ward.--The of the code, and the court thereby

Associatc Judges, as a Court of Pro- became invested with jurisdiction of
bate, on the 10th of August, 1829, the subject-matter ........ .... Ibid.
appointed a guardian for certain

Lield, that an inquiry as to whether

the infants were at the time of such Competency of. Sce CRIMINAL LAW, 14.
appointment residents of this or an-
other state, could not be raised col-


....... Ibid.
11. Same.- Vendor and Purchaser.- Sce CrimiAL LAW, 32, 35, 36, 38; EF-
Guardian's Sale.--Application of

Proceeds.-Where a guardian, who Right of to determine the law in crimi-
has received his appointment from a

nal cases. See CRIMINAL LAW, 26.
court of superior jurisdiction having Instructions to. Sec IXSTRUCTIONS TO
authority to make such appoint- JURY.
ments and jurisdiction of guardians'
petitions to sell lands, but without JUSTICE OF THE PEACE.
jurisdiction to make the particular
appointment, sells land of his ward, See Criminal Law, 3; NAME; Pusat-
under an order of such court, to one

ING, 11, 12.
who purchases and pays for such
land, relying in good faith on such

order, such purchaser will be pro-
tected in the title so acquired, if the 1. Pleading.- Officcr.- An answer
guardian applies the proceeds prop- justifying an arrest made by the
crly. And in an action by the late defendant as sheriff, by virtue of a
tard, arrived at majority, to recover capias ad rcspondendum issued from
such land, a debt of the guardian the office of the clerk of the court
against the deceased father of the of common pleas, need not state that
ward, through whom the plaintiff an affidavit was filed before the writ
claims title, allowed by such court issued; but if the return day be
as a credit to the guardian upon past, the answer must show a re-
settlement, will be presumed to have turn. Caldwell v. Kenworthy et al.238

been rightfully allowed......... Ibid. 2. Same.—Where a defendant justifies
12. Pleading.--Answer.-Code.—Un- the seizure and detention of prop-

der our code, a defendant may set erty as a constable, by virtue of an
forth in his answer as many grounds execution in his hands, the original
of defense, counter-claim, and set- cxecution or a copy thereof must be
off, whether legal or cquitable, as filed with his answer. Bridges v.
he may have, without regard to Layman et al.......

the location of the subject matter. 3. Evidence.—The justification can-

Vail ct al. v. Jones et al......... 467 not be sustaincd without proper cri-
13. Same.-- Mortgage.-Suit on a note, dence of the contents of the execu-
in the circuit court of a certain tion......

... Ibid.
county. Answer, that the note was 4. Arrest.— Military Order.- Evi-
given by the defendant to the plaint- dence.—A sergcant of volunteers in
iff for money loaned by the latter to the army of the United States, in
the former; that, to secure the pay- the last war, having received a writ-
ment thereof, the defendant cxecuted ten order from the proper military
to thc plaintiff a deed, absolute on authorities to arrest certain descrt.
its face, but intended as a mortgage, crs, in this State, and any others of
for certain lands, of a value stated, that class, and all persons who should
in another county, in this State; interfere with such arrests, made the
that the plaintiff held possession of arrest of said deserters at night;
said real estate and refused to recon- and the party having them in charge,
under command of said scrgeant, other valid contracts. Stackberget v.
was fired upon from a wood, not far Mosteller, 4 Ind. 461, questioned. Ibid.
from the residence of one A., who
was treasurer of a treasonable or-

ganization, the object of which was
the protection of deserters, and who See JURISDICTION, 12, 13; PRACTICE, 2,
had been fined in the United States 3.
Court upon a plea of guilty to an
indictment for harboring deserters.

Upon the fire being returned, the
assailants fled, and the soldiers, after

Sce LandLOOD AND TENANT, 1, 2.
proceeding a short distance, about
three or four o'clock in the morning

and before daylight, discovered A.
crossing the road from the direction

in which the firing had occurred,
and halted and searched him, find-

ing nothing but a part of a box of
caps, though he subsequently stated Sec PrixCIPAL AND SURETY, 7.
that be dropped a revolver when he
stopped. He seemed fatigued, and

was "puffing and blowing." He was
thereupon arrested and secured with Sce Criminal Law, 2, 19 20.
ropes by the soldiers under com-
mand' of said sergeant, and taken LIMITATIONS, STATUTE OF.
by them beyond the county, to the
military headquarters of the district, See STATUTE OF LIMITATIONS
where he was discharged by the
provost marshal, after a short deten-

tion. Suit by A. for damages, against
said sergeant and those under his See Cumsal Law, 2, 19, 30.

Held, that the written order for the

arrest of the deserters having been
shown to be lost, cvidence of its

contents was admissible.
TIeld, also, that the defendants were Sec C2MA: LAW, 43, 44.

justificd. Teagarden v. Graham ct



Pleading.In a complaint for mali.

cious prosecution, the plaintiff must
LANDLORD AND TENANT. aver that the prosecution claimed to

have been malicious has terminated

in his acquittal or discharge. Gor.

rell v. Snow.......
1. Statute of Frauds.- Parol Lease.-
To Commence in Futuro.--A parol

lease of lands for the term of one
ycar, to commence thirty days after 1. Malice.- Purpose to Kill.-.1lthough
the making of the contract, is valid a person unlawfully and purposely
within the Statute of Frauds; and kill a human being, yet if it be done
the lessee may maintain an action in a sudden heat of passion, caused
against the lessor to recover posses- by a sufficient provocation, and in
sion according to the terms of the the absence of cspress malice, then

lease. Nuffman v. Starks.........474 malice will not be implied from the
2. Same.--It seems that the parties act, but the offense will be man.

to such a lcase may have such rem- slaughter. Murphy v. The State.511
cdies for violations of the contract 2. Provocation ly Words.- Words
as would appertain to violations of only, however abusive and insulting

they may be, cannot constitute such , IIeld, that the notice was insufficient sufficient provocation to rebut the to create the lien, and that the court presumption of malice arising from had no power to refcrm it. Lindthe act, in such a case, and reduce ley et al. v. Cross et uz ...............106 the offense from murder to man- 2. Same.Pleading.- Married Wo. slaughter .....

.Ibid. man.-A complaint to enforce a ma3. Deadly Weapon.-If the act be terial-man's lien for lumber sur

perpetrated with a deadly weapon, nished to erect a dwelling house so used as likely to produce death, upon the separate real estate of a the purpose to kill may be inferred married woman, the portion relating from the act....


to the lien showing an insufficient 4. Words.- Definition of.- Statute notice, was held bad on demurrer,

Construcd.The word “voluntari- for want of averment that the dwellly” in our statutory definition of ing house was necessary and proper manslaughter means, by the free for a full and complete enjoyment exercise of the will, done by design, by the married woman of the real purposely..............

.Ibid. estate in question........ ..Ibid. 5. Instruction to Jury.-On the trial of an indictment for assault and bat

MERGER. tery with intent to murder, the court instructed the jury, in effect, that See Troost v. Davis, 34. there can be no purpose to kill in manslaughter; and that if such a

MILITARY ORDER. purpose be shown to exist, and if death result, the killing is murder.

Leld, that this was crror............Ibid.


Valuable consideration. Scc VOLUX-


Of partics. See Parties, 10.
See HUSBAND AND Wire. Of Causes.- Demurrer.--Complaint to

recover the possession of certain MASTER AND SERVANT. real estate, held by the defendant as

tenant of the plaintiff

, for non-paySee RAILROAD, 5, 11.

ment, upon ten days' notice, of rent

due, and also for the rent unpaid, MEASURE OF DAMAGES. in one paragraph. Finding, that

the plaintiff was not entitled to the Sce DAMAGES, 1, 2, 4; OFFICE AND OF- possession of the premises, and that FICER, 3, 4, 5.

the defendant was indebted to the MECHANIC'S LIEN.

plaintiff in a certain sum. Judgment

for the sum found due. 1. Notice.---Reformation of.- A notice Teld, that if two causes of action were

of intention to hold a material-man's improperly joined, the only method lien crroncously described the prop- to reach that error was by demurrer. crty as lots "6 and 7," the true Held, also, that this court can in no description being “3 and 4.” Suit case reverse a judgment for this to enforce the lien, the complaint crror. Burrows v. Holderman et al.412 alleging, that the ownership of the property remained unchanged; that MISREPRESENTATION. no third person had acquired any rights that would be affected by a Sce RescissioX, 2, 3; Sale, 7, 8, 9, 11. correction of the mistake; and that the materials furnished were the

MISTAKE. only materials of the kind ever surnished by plaintiff to defendant.

See Will, 1, 2.

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