agreement to insure and to issue a policy, an action may be brought
upon such agreement.-The Peoria Marine, &c., Co. v. Walser, 73
4. ACTION-INJURIES BY MILL-DAM.-A party who is injured by the
erection of a mill-dam, is not deprived by the statute, 2 G. & H.
310, of his remedy for such injury, by action at common law, unless
the damages have been assessed by writ of assessment, and such
assessment confirmed by the Court and paid within the year after
confirmation.-Lane v. Miller,
104
5. FRAUDULENT CONVEYANCE-Creditors.—A owned a tract of land,
and with intent to defraud his creditors, conveyed it, without con-
sideration, to B, who, to aid A in accomplishing his fraud, conveyed
it, without consideration, to C. C mortgaged the land to the sink-
ing fund for a loan of 500 dollars, which he received; C was a
party to the purpose of A to defraud his creditors. The State re-
ceived the mortgage made to the sinking fund, and made the loan
in good faith. All of said conveyances, except the mortgage to
the sinking fund, were set aside by a decree of the proper Court,
and the land ordered to be sold, subject to said mortgage, for the
benefit of the creditors of A. The land did not sell for enough to
pay them. Suit was then brought against C, to compel him to ac-
count for and pay over to A's creditors the 500 dollars obtained by
the said mortgage.
Held, that C was entitled to the money as against A, but held it in
trust for the creditors of A, to whom he was liable to account and
pay it over. Jones v. Reeder,
6. ACTION-PROMISSORY NOTE.-A made his note payable to B, and
C and D indorsed it. B sued C and D, as joint makers of the
The evidence showed conclusively that C and D placed their
names on the note, not as makers, but as indorsers.
Held, that C and D were not liable in the action.-Dale v. Moffitt,
7. STOLEN PROPERTY.-The owner of personal property which has
been stolen, can, in this State, maintain a civil action for its value,
before the criminal prosecution for larceny has been determined.
-Short v. Barker,
8. ACTION FOR CRIMINAL CONVERSATION.-In such an action it is not
competent for the defendant to plead in bar a want of virture in the
plaintiff and his wife, and it does not need to be pleaded at all in
order to authorize evidence of the fact to be produced in mitigation
of damages. Harrison v. Price,
9. FOR KEEPING POOR.-If a claim for services rendered to the poor
of a county or township be disallowed by the county board, in
whole or in part, the claimant may appeal, or, at his option, bring
an action against the county.-The Board, &c., of Bartholomew Co.
v. Wright,
10. PRINCIPAL AND AGENT.-It seems that, if money due to a principal
on an illegal transaction be paid to his agent for him by the party
from whom it is due, the principal may recover it from the agent,
for the contract or obligation to pay the money to his principal is
not connected immediately with the illegal transaction, but grows
out of the receipt of the money by the agent for the use of his
principal. Daniels v. Barney,
207
11. COUNTY TREASURER AND AUDITOR.-The account current kept by
the auditor with the treasurer, is a public record, and if it is erro-
neously kept, the treasurer may, by proper proceeding, require its
correction by the auditor.-Wells v. The State, &c.,
241
12.-DAMAGES-MUTUAL NEGLIGENCE.-Where there is mutual neg-
ligence, if the defendant can not avoid the accident by reasonable
care and skill, the plaintiff can not recover; nor can he recover
where his negligence is proximate, and directly and materially con-
tributes to the result, if the defendant could not have avoided the
accident by ordinary care.-The Indianapolis, &c., R. R. Co. v.
Wright,
13. CONTRACT-ACTION-MORTGAGE.-Where A borrows money of
B, and executes his note to B, and by deed conveys certain land to
him, and takes from B a bond to re-convey the land on payment of
the note, such transaction amounts prima facie to a mortgage, and
if B, said bond not being recorded, sells and conveys said land to
C, without notice of the nature of said transaction, for a sum much
larger than the sum borrowed, A will be entitled to recover of B
the difference between said sums.-Crassen v. Swoveland, 427
14. TRUST-FORFEITURE-INJUNCTION.-Where a lot is conveyed to
trustees of a religious society, for the use of such society, accord-
ing to the discipline, &c., and the society erect a church building
thereon, and the trustees lease the basement thereof, which was
made for a prayer room, to a teacher of a common day school, with
leave to him to change the internal arrangments of the room to
adapt it to his business, such trustees may be enjoined on the ap-
plication of members of the society, from such leasing.-Perry v.
Mc Ewen,
15. FRAUDULENT SALE.-A mortgagee, where the mortgaged prop-
erty has been sold at sheriff's sale, upon a judgment fraudulently
procured in favor of another person, may institute his action to set
aside the sheriff's sale, without, at the same time, suing for the
foreclosure of his mortgage, and his mortgage, or a copy of it,
need not, in such case, be filed with the complaint.-Potter v. Sum-
16. Where money is paid but not credited on a judgment, and after-
wards execution is issued thereon, and the whole amount collected
by levy and sale of the property of the defendant, the latter may
maintain an action against the plaintiff for the money so paid and
not credited. Catterlin v. Somerville,
1. ADJOURNED TERM-PRACTICE.-A defendant in an indictment for
murder applied for a change of venue on account of the prejudice
of the judge of the Court. The application was made on the last
day of the regular term of the Court, as fixed by law. It was
granted, and the Court adjourned to a day fixed, pursuant to the
act of February 12, 1855, 2 G. & H. 11, and another judge was
called in to try the cause. The order for the adjournment, and the
publication of the notice were noted, by the clerk, on the blotter,
and the notice made out, handed to the printer, and published in
the paper, before the minutes were made out and signed. On the
day to which the regular term adjourned, the judge appeared and
took his seat on the bench, heard proof of the order adjourning the
term, &c., signed the minutes of the proceedings of the Court, thus
far, and then gave place to the judge who had been called in to try
the cause, who appeared pursuant to appointment, to preside at the
trial. After he had taken his seat on the bench, the defendant ob-
jected to being tried before him, on the ground that "at the time
of public notice being given of the present adjourned term, and
ordering publication to be made, said order had not been signed by
the presiding judge of the Court.
Held, that there was no irregularity in the proceedings adjourning the
term of the Court.-Cordell v. The State,
2. STATUTES REPEAL.-The act of February 12, 1855, 2 G. & H. 11,
providing for extending the terms of Circuit Courts, by adjourn-
ment, &c., was not repealed by the act of December 24, 1858, id.,
3. SAME-INOPERATIVE.-The act of December 24, 1858, 2 G. & H.
11, did not pass both house of the legislature, and consequently never
became a law.
Ibid.
1. AMENDMENT PENDING TRIAL.-In an action to recover personal
property and damages for the detention thereof, it is not competent
for the Court, in the progress of the trial, over the objection of the
defendant, to permit the plaintiff to amend his complaint so as to
claim special damages for expenses incurred in money and time in
seeking to recover such property.-Harris v. Mercer,
1. COUNTY POOR.-If a claim for services rendered to the poor of a
county or township be disallowed by the county board, in whole or
in part, the claimant may appeal, or, at his option, bring an action
against the county.-The Board, &c., of Bartholomew Co. v. Wright,
2. LIQUOR LICENSE- APPEAL STATUTES CONSTRUED.- Where a
license to sell liquor is refused by the county board, and the appli-
cant, under the provisions of the act of March 11, 1861, appeals to
the Circuit Court or Court of Common Pleas, the decision of such
Court is final, and no appeal lies therefrom to the Supreme Court.—
The Board, &c. v. Lease,
261
3. APPEAL.-Where no appeal was prayed, and no bond given in the
Court below, a cause can not be properly appealed as from an inter-
locutory order, under the second specification of section 576, 2 G
& H. 276.-Berry v. Berry,
4. APPEAL BOND-CONTRACT.-Where an appeal is prayed from the
judgment of a justice of the peace, within the time limited by law,
and a bond signed by the surety but not by the principal, is filed
and approved by the justice, the appellant is entitled to his appeal,
and the subsequent withdrawal of the bond to procure its execu-
tion by the principal, and its absence from the files until after the
expiration of the time limited for an appeal, could not divest the
party's right to the appeal.-Hollensbe v. Thomas,
5. PRACTICE NEW TRIALS.-An appeal can not be taken from an
order of the Circuit Court granting a new trial upon application
made after the term, because such an order is merely interlocutory
and not final.-House v. Wright,
6. APPEAL UNDER § 69.-Where an appeal is taken under this sec-
tion, it not competent for the appellate Court to inquire whether
the petitioners for the improvement were residents of the city; or
whether the petition had been signed by the requisite number of
persons owning property on the street; or whether two-thirds of
the councilmen concurred in making the improvement without
petition; or whether the contractor was the lowest and best bidder;
or into any other fact which arose before the making of the con-
tract. The Board of Commissioners of Allen Co. v. Silvers, 491
7. SAME-CONSTITUTIONAL LAW.-That part of section 69, limiting
the inquiry on appeal to facts which arose after the making of the
contract, is constitutional and valid.
APPRAISEMENT.
See SHERIFFS' SALES, 1, 2, 3.
1. ATTACHMENT-PRACTICE.-Where an issue is formed on an affida-
vit for attachment, it should be tried by the Court, or jury, with
the issues in the cause in which the attachment is issued.-Maple
v. Burnside,
2. SAME. But if the issue in the cause is first tried, and there is no
objection interposed by the defendant, to the subsequent trial of
the issue on the affidavit for attachment, he will be deemed to have
waived the right which he had to insist upon a trial of the whole
controversy at once.
Ibid.
3. PAYMENT BY GARNISHEE.-If the Court have jurisdiction of the
subject and the parties, a payment on execution under the judg-
ment will protect the garnishee, though the judgment may have
been irregular and reversible on error; and a reversal of it by the
defendant for irregularity, after payment by the garnishee, will not
invalidate the payment. The garnishee should see to it that the
Court has jurisdiction.-Richardson v. Hickman,
4. PRACTICE WAIVER.-Where the defendant appears in attachment
suits the regularity of the attachment proceedings must be tried in
such suits; and if the defendant, having appeared, makes no objec-
tion by motion or answer, their regularity will be deemed admitted,
and all objections waived.-Dunn v. Crocker,
324
5. PRACTICE.-Objections to the regularity of attachment proceed-
ings can not be first raised in collateral suits.
6. SAME JUSTICES' COURT.-The practice in attachment proceedings
is the same in justices' as in the superior Courts.
7. UNDERTAKING IN ATTACHMENT.-As to what undertaking in at-
tachment proceedings will operate to release the attached property
and authorize a personal judgment, see the opinion at length.
Ibid.
8. ATTACHMENT-REPLEVIN-AFFIDAVIT.—-In either of these forms
of action, the affidavit may contain the requisites both of a com-
plaint and affidavit, so as to dispense with any separate complaint.
Ibid.
9. PLEADING.—In an action upon an undertaking in attachment, it is
necessary to set out the undertaking and show that a case arose in
which it was properly taken, but the proceeding in attachment need
not be fully set out or made part of the complaint. They are not
the foundation of the action.
Ibid.
1. PLEADING-RELATOR.-In actions to recover money due to the
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