the rate of ten per cent. The court refused to require, as prayed by the complaint, that the judgment should draw interest at the rate of ten per cent.
Held, that this was not error...... Ibid. 3. Contract-Remedy.-Where a per-
son contracts for the payment of a higher rate of interest than can at the time be lawfully contracted for, but the law in force at the time the remedy is sought against him allows partics to contract for the payment of such higher rate, the latter law controls. Klingensmith et al. v.
Divorce. Evidence.- Interroga- tories to be answered under oath by the defendant cannot properly be filed with the answer to a cross petition in an action for a divorce; and if filed and answered, the an- swers cannot properly be introduced in evidence. Barr v. Barr.......240 2. Harmless Error.-Where the de- fendant filed, with his answer, inter- rogatorics to the plaintiff, which were answered, but the answers were not sufficient, and the court errone- ously refused to compel him to an- swer; but it appeared by the record that the plaintiff was sworn as a witness, and as such testified fully to the facts sought to be clicted by the interrogatories, fully supporting, in that respect, the averments of the answer;
Ield, that the error could not avail the defendant. Aylesworth et al. v. Brown et a!.......... .......270
Contract.—Where a party to a contract is voluntarily intoxicated at the time of making it, to the extent only that he does not clearly understand the business, this does not render his contract void or voidable, where no advantage is gained by dealing with him. Henry v. Ritenour...........136 J
Of causes. See PRACTICE, 33. Of parties. See CONTRACT, 8; PARTIES.
Release.-A. held a judgment against B. and C. for a certain amount; B. paid half the amount, and thereupon A. executed to him a written instru- ment wherein A. covenanted that he would thenceforth "pursue the legal and equitable remedy on caid judg- ment against C. alone, and not against B., looking to C. alone for the full and final payment and satis- faction of said judgment, without, however, intending to prejudice or interfere with the rights and liabili- ties of said B. and C. to each other on account of said judgment." Ield, that this instrument did not op- erate as a release of C. from liabil- ity upon the judgment. Aylesworth et al. v. Brown et al....... ..270
Of Court of Common Pleas; election of. See COURT OF COMMON PLeas, 2.
See ARREST OF JUDGMENT, 1, 2; JURIS- DICTION, 3, 5, 6,7,9; NAME; PRACTICE,
Demand of. See PLEADING, 23, 24.
1. Interest.-Rate of upon Judgment. The act of 1867, increasing the maximum rate of interest to ten per cent., when that rate is provided for by contract in writing, does not affect the third section of the act of 1861, enacting, that "interest on a judgment, or decree for money, shall be from the date of signing until the same be satisfied, at the rate per
cent. agreed upon by the parties in the original contract, not exceeding six per cent., and if there was no contract by the parties as to inter- est, then at the rate of six dollars a year on one hundred dollars." Smith v. Thomas........ .....280
Same.-Suit on a promissory note, dated April 8th, 1868, and providing for the payment of interest at the rate of ten per cent. The court re- fused to require, as prayed by the complaint, that the judgment should draw interest at the rate of ten per cent.
Ield, that this was not error......Ibid. 3. Form of Practice.- Supreme
Court. No question can be made in the Supreme Court as to the form of a judgment, where no objection has been taken below. Eaton et al. v. Burns et al.......... .390
Title to Real Estate.-Where the main object of a complaint in the court of common pleas is to have satisfaction entered of a mortgage of real estate, there is no error in overruling a motion made by the defendant, before answer, to transfer 9. the cause to the circuit court on the ground that the title to real estate is in issue. Paine et al. v. The Lake Erie & Louisville R. R. Co.........283 3. Pleading. In pleading a record
of a judgment, it is unnecessary to show by averments that the court had jurisdiction. Spaulding et al. v. Baldwin....
..376 Decedents' Estates.-Proceeding to sell Real Estate.-An application to sell lands in the course of adminis tration stands upon the footing of an ordinary adversary judicial proceed- ing in a court of superior jurisdic- tion.... Ib.d. Same-Collateral Proceeding.— Where jurisdiction has been acquired in such a proceeding, subsequent er- rors in the course of its exercise- as in the order of sale and its con- firmation--however grave and glar- ing, will not subject the judgment to successful collateral attack..Ibid. Same. Pleading.- Exhibits. - Where, in an action to recover pos- session of real estate, the defendant claims title through a sale and con- veyance to him under an order of court granted upon the application of an administrator, to make assets to pay debts of the decedent, the answer need not aver that a real estate bond was filed, but copies of the record and the deed must be exhibited as parts of the answer. Ibid. Associate Judges.-Guardian and Ward. The Associate Judges, as a Court of Probate, had jurisdiction on the 10th of August, 1829, to ap- point guardians for infants, and such court was a court of record. It had jurisdiction of guardians' petitions to sell lands. Such jurisdiction ex- tended to lands situated anywhere within the State. Though the law required a bond to be given before entering the order of sale, the fail- ure to require one would not render the proceeding void. Dequindre et al. v. Williams......
Same.-Probate Court.-The Pro- bate Court, upon its organization under the act of 1829, had authority to take jurisdiction of matters in relation to guardians and wards then pending in such Court of Pro- bate held by the Associate Judges, and conduct them to conclusion. Ibid.
Collateral Proceeding.-Where a proceeding in a court of superior jurisdiction is of such a character that upon final action the court should, from the nature of the case, ascertain whether it is such in fact
that it has jurisdiction to act as it is invoked to do, and it does so act, the matter cannot be questioned collaterally ....Ibid. Same.-Residence of Ward.-The Associate Judges, as a Court of Pro- bate, on the 10th of August, 1829, appointed a guardian for certain infants.
Held, that an inquiry as to whether
vey the same and give possession thereof on the payment of the note. Held, that the answer set forth a proper counter-claim, within the meaning of the code, and the court thereby became invested with jurisdiction of the subject-matter....... ...Ibid.
See CRIMINAL LAW, 32, 35, 36, 38; Er- IDENCE, 9.
Right of to determine the law in crimi- nal cases. See CRIMINAL LAW, 26. Instructions to. See INSTRUCTIONS TO JURY.
JUSTICE OF THE PEACE. See CRIMINAL LAW, 3; NAME; PLEAD ING, 11, 12.
the infants were at the time of such Competency of. See CRIMINAL LAW, 14. appointment residents of this or an- other state, could not be raised col- laterally ......... Ibid. 11. Same.-Vendor and Purchaser. Guardian's Sale.--Application of Proceeds. Where a guardian, who has received his appointment from a court of superior jurisdiction having authority to make such appoint- ments and jurisdiction of guardians' petitions to sell lands, but without jurisdiction to make the particular appointment, sells land of his ward, under an order of such court, to one 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 guardian applies the proceeds prop- erly. And in an action by the late ward, arrived at majority, to recover such land, a debt of the guardian against the deceased father of the ward, through whom the plaintiff claims title, allowed by such court as a credit to the guardian upon settlement, will be presumed to have been rightfully allowed.......... Ibid. 12. Pleading.-Answer.- Code.-Un- der our code, a defendant may set forth in his answer as many grounds of defense, counter-claim, and set- off, whether legal or equitable, as he may have, without regard to the location of the subject-matter. 3. Vail et al. v. Jones et al........467 13. Same.-Mortgage.-Suit on a note, in the circuit court of a certain county. Answer, that the note was given by the defendant to the plaint- iff for money loaned by the latter to the former; that, to secure the pay- ment thereof, the defendant executed to the plaintiff a deed, absolute on its face, but intended as a mortgage, for certain lands, of a value stated,! in another county, in this State; that the plaintiff held possession of said real estate and refused to recon-
Pleading. Officer. An answer justifying an arrest made by the defendant as sheriff, by virtue of a capias al respondendum issued from the office of the clerk of the court of common pleas, need not state that an affidavit was filed before the writ issued; but if the return day be past, the answer must show a re- turn. Caldwell v. Kenworthy et al.238 2. Same.-Where a defendant justifies the seizure and detention of prop- erty as a constable, by virtue of an execution in his hands, the original execution or a copy thereof must be filed with his answer. Bridges v. Layman et al.......... .384
Evidence. The justification can- not be sustained without proper evi- dence of the contents of the exccu- tion........ ....Ibid.
Arrest. Military Order.- Evi- dence. A sergeant of volunteers in the army of the United States, in the last war, having received a writ- ten order from the proper military authorities to arrest certain desert- ers, in this State, and any others of that class, and all persons who should interfere with such arrests, made the arrest of said deserters at night; and the party having them in charge,
under command of said sergeant, was fired upon from a wood, not far from the residence of one A., who was treasurer of a treasonable or- ganization, the object of which was
other valid contracts. Stackberger v. Mosteller, 4 Ind. 461,questioned. Ibid.
See LANDLORD AND TENANT, 1, 2.
LEGISLATURE.
See STATUTE. LEVY.
the protection of deserters, and who See JURISDICTION, 12, 13; PRACTICE, 2, had been fined in the United States Court upon a plea of guilty to an indictment for harboring deserters. Upon the fire being returned, the assailants fled, and the soldiers, after 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 that he dropped a revolver when he stopped. He seemed fatigued, and was "puffing and blowing." He was thereupon arrested and secured with ropes by the soldiers under com- mand of said sergeant, and taken by them beyond the county, to the military headquarters of the district, 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 command.
Held, that the written order for the
arrest of the deserters having been shown to be lost, evidence of its contents was admissible. Held, also, that the defendants were justified. Teagarden v. Graham et al
Statute of Frauds.-Parol Lease.— To Commence in Futuro.-A parol lease of lands for the term of one
See PRINCIPAL AND SURETY, 7.
See CRIMINAL LAW, 2, 19 20. LIMITATIONS, STATUTE OF.
See STATUTE OF LIMITATIONS
LIQUOR LAW.
See CRIMINAL LAW, 2, 19, 20. M MALICE.
See CRIMINAL LAW, 43, 44. MALICIOUS PROSECUTION.
Pleading. In a complaint for mali- cious prosecution, the plaintiff must aver that the prosecution claimed to have been malicious has terminated in his acquittal or discharge. Gor- rell v. Snow..................
year, to commence thirty days after 1. Malice.-Purpose to Kill.-Although
the making of the contract, is valid within the Statute of Frauds; and the lessee may maintain an action against the lessor to recover posses- sion according to the terms of the lease. Huffman v. Starks.........474 2. Same. It seems that the parties to such a lease may have such rem- edies for violations of the contract as would appertain to violations of
a person unlawfully and purposely kill a human being, yet if it be done in a sudden heat of passion, caused by a sufficient provocation, and in the absence of express malice, then malice will not be implied from the act, but the offense will be man- slaughter. Murphy v. The State.511
2. Provocation by Words.- Words only, however abusive and insulting
they may be, cannot constitute such sufficient provocation to rebut the presumption of malice arising from the act, in such a case, and reduce the offense from murder to man- slaughter .......Ibid. 3. Deadly Weapon.-If the act be perpetrated with a deadly weapon, so used as likely to produce death, the purpose to kill may be inferred from the act.... ... Ibid.
Words.- Definition of Statute Construed. The word "voluntari- ly" in our statutory definition of manslaughter means, by the free exercise of the will, done by design, purposely....... .........Ibid.
5. Instruction to Jury.-On the trial of an indictment for assault and bat- tery with intent to murder, the court instructed the jury, in effect, that there can be no purpose to kill in manslaughter; and that if such a purpose be shown to exist, and if death result, the killing is murder. Held, that this was error.......... ....Ibid.
See STATUTE OF LIMITATIONS, 1, 2.
Of parties. See PARTIES, 10. Of Causes.-Demurrer.-Complaint to recover the possession of certain real estate, held by the defendant as tenant of the plaintiff, for non-pay- ment, upon ten days' notice, of rent due, and also for the rent unpaid, in one paragraph. Finding, that the plaintiff was not entitled to the possession of the premises, and that the defendant was indebted to the plaintiff in a certain sum. Judgment for the sum found due.
Held, that if two causes of action were
improperly joined, the only method to reach that error was by demurrer. Held, also, that this court can in no case reverse a judgment for this error. Burrows v. Holderman et al.412
rights that would be affected by a See RESCISSION, 2, 3; SALE, 7, 8, 9, 11.
correction of the mistake; and that the materials furnished were the only materials of the kind ever fur- nished by plaintiff to defendant.
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