May Term, 1861. Low V. EVANS. The point presented is, whether, under the statute of 1857 authorizing the incorporation of cities, and the ordinances herein pleaded, the defendant was justified in arresting and imprisoning the plaintiff without warrant, as shown by the record. The act of 1857, in question, prescribes at great length, the instances in which the mayor, &c., shall have power to pass ordinances for the government of the city; among others, Seventh, to preserve peace and good order, and prevent vice and immorality. Acts 1857, p. 52. It is further provided, § 38, that the council shall have power to make other by-laws and ordinances, not inconsistent with the laws of the State, and to enforce the observance of ordinances, &c., by enacting such penalties for their violation, not exceeding fifty dollars for any one offense, which may be recovered by an action at law, with costs, as they may deem right. SEC. 40 provides, that suits shall be in the corporate name of the city, and the sums so collected paid into the city treasury; the process to be a warrant; the person arrested to be retained in custody, or under recognizance, until the next city court. Sec. 41, that if the penalty or forfeiture in which judgment is obtained is not paid, the defendant may be committed, &c. Sec. 23 provides, among other things, that it shall be the duty of the marshal to suppress all disturbances and breaches of the peace, and arrest persons guilty of the same. It will be observed, that the statute speaks of penalties and forfeitures, in connection with the violation of by-laws and ordinances of the city, while the ordinances passed by the city of Lafayette prescribe fines; nevertheless, the form pursued in recovering the same is in the nature of a suit for the recovery of a penalty or forfeiture. We are not referred to any case precisely in point, though our attention is called to that of Vandeveer v. Mattocks, 3 Ind. 479; but the difference between that case and the one at bar is, that there Vandeveer was arrested by Mattocks, a constable, for disturbing a religious society, in his view; for being guilty of a misdemeanor forbidden by statute, and for which he was liable to a prosecution in the name of the State, on the criminal side of the Court. In this case, there is no statute making drunkenness a crime, or misdemeanor. The act was an offense against a city ordinance, for which the statute prescribed that a forfeiture, or penalty, might be recovered in a suit at law. It is true, the city has the advantage, in a proceeding to collect the penalty, of requiring the defendant to give a recognizance for his appearance, or that he shall remain in custody; but it appears to us, that it would be a very strained construction of the statutes in question, so to interpret them as, in effect, to vest in the hand of every one clothed with a "little brief authority," the power, as a ministerial officer, of his own volition, not only to determine as to whether a citizen shall be arrested, but also as to the time when he shall enjoy liberty, or how long he shall suffer imprisonment. All statutes in derogation of liberty should be strictly construed. When those in question are tested by that rule, we are at a loss to see any authority for thus imprisoning a man, for an uncertain time, because he may be subject to a penalty, to be recovered by an action in the nature of an action of debt. If the power exists in the ministerial officer to arrest, on view, it is subject to the statutes of the State, and to general and known principles of law. By these, it would be the duty of the officer to take the prisoner, forthwith, before a tribunal having jurisdiction, and prefer a complaint against him. Prison doors do not fly open, in this country, at every touch of a mere ministerial officer, however worthy the motive may be that may operate upon him; much less should they be under his sole control, if he was subject to act wantonly, or from an improper motive, which we do not intimate was the case in this instance. The demurrer should have been sustained. Per Curiam.-The judgment is reversed, with costs. Cause remanded, &c. D. Mace, for the appellant. John S. Williams and Thos. B. Ward, for the appellee. May Term, 1861. Low V. EVANS. May Term, 1861. JONES V. VAN GUNDY. Monday, JONES V. VAN GUNDY. On the trial of an information for lunacy, the Court may, of its own motion, order an examination of the alleged lunatic before the jury; and, ordinarily, it would not be erroneous to make such order on motion of persons interested; but where it does not appear that any of the triers of the question desired such examination, it is no abuse of discretion for the Court to refuse an application of the person bringing the information to have the examination made. APPEAL from the Fountain Common Pleas. HANNA, J.-The appellant filed a complaint, averring that the appellee was of unsound mind and incapable of transacting business. Issue was made, and, on the trial, the appellant moved the Court to examine, or cause to be examined, the said appellee, before the jury, touching her capacity to transact business, and her mental soundness. The motion was overruled. This presents the only question in the case. The record does not disclose the reason for the refusal by the Court to permit the examination sought. The statute is silent upon the subject. Under the practice in England, the control of the persons and estates of idiots, lunatics, &c., was vested in the Court of Chancery. Commissioners were appointed by the Chancellor to inquire as to lunacy. The return made to the writ of inquiry, thus issued, might be traversed, and the question presented to a jury. The person alleged to be of unsound mind might be brought before the commissioners, or the Chancellor, for inspection and examination. But whether the person should be so examined, appears to have been discretionary with the commissioners, the jury, or the Chancellor. Mad. Ch., vol. 2, 728 to 740; 12 Ves. 455; 2 id. 405; 1 P. Wms. 701; 1 Johns. Ch. R. 600; 3 Burr. 1631; 1 Har. Ch. Pr. 753; 1 Coll. on Id. & Lun. 324 : 3 Atk. 6; Amb. 109, Southcote's case. The same practice appears to have been pursued, in some instances, in New York. 1 Johns. Chy. 600. In the case at bar, the motion to enter into such examination emanated from the person averring the unsoundness of mind. It is not apparent that any of the triers of that question it 1861. MARCH V. SHELDON. desired such an examination. We can not say, from the May Term, record before us, that there was any error in the ruling on the motion. We are of opinion that the judge, of his own motion, might have ordered such examination; and, ordinarily, would not be error for him so to rule on motion of persons interested; and it may be possible that the jury, as the triers of the question of lunacy, or unsoundness of mind, would have the right to require, or enter into, an examination and inspection, but this we do not now decide. We see no abuse of discretion, and consequently no error in the ruling. Per Curiam.-The judgment is affirmed, with costs. J. Ristine, J. E. McDonald, A. L. Roache and M. M. Milford, for the appellant. W. A. Peele, E. A. Davis, J. J. Taylor and A. A. Rice, for the appellee. MARCH and Another v. SHELDON and Others. Suit by an indorsee of a promissory note against a remote indorser, alleging the insolvency of the makers. Answer: that at the time of making the indorsement, defendant took from his indorsee a writing, showing that the note was assigned without recourse. The Court instructed the jury that a party receiving a negotiable note or bill of exchange, before maturity, in good faith, in the usual course of business, and without fraud, is not bound by equities which exist between the parties of which he had no notice. Held, that the instruction was erroneous. APPEAL from the Elkhart Common Pleas. HANNA, J.-The appellants assigned certain promissory notes to one English, who assigned them to appellees as collaterals to secure a debt due by him to them. Suit by the appellees against the appellants on their assignment, on the ground that the makers of the notes were insolvent. The appellants averred that the notes were by them assigned Monday, May Term, without recourse, and produced a separate writing of said English to that effect. It is alleged that this writing was obtained by fraud. 1861. CHARLES V. CONES. A question is presented as to the competency of a witness. As the judgment must be reversed upon another point, it is of no practical utility to decide the question so made, because of a late statute changing the rule in reference thereto. The Court instructed the jury that "a party receiving a negotiable note or bill of exchange, before due, in good faith, in the usual course of trade, without fraud, is not bound by equities which exist between the parties, of which he has no notice;" and refused to instruct the jury that the notes were subject to such equities. The instruction given was erroneous; and we are not able to perceive but that it was well calculated to mislead the jury. Per Curiam.-The judgment is reversed, with costs. Cause remanded. R. Lowry, E. Dumont and O. B. Torbett, for the appel lants. CHARLES . CONES and Others. A. and B. were, respectively, the owners of adjoining tracts of land, which they held from a common grantor, C. Suit by A. against B. to recover possession of a part of the land, claimed to be embraced in C's deed to him, A., and which B. was alleged to occupy without right. B. filed a counter claim, making the heirs of C. parties, alleging a mistake in the description contained in his deed, and asking to have the same corrected, so as to include the land in controversy, or that a proper rebatement might be made from the purchase money yet owing by him to the representatives of C. On the trial, D., who was the husband of one of the heirs of C., and with his said wife was made a party to the counter claim, was offered by A. as a witness, to prove that there was no mistake in the deed of B., but that the same embraced all the land purchased by him. Held, that if B. really bought the land in controversy, under such circumstances as would entitle him to have the mistake in the deed corrected as |