corporate name of a city thus organized.

at sheriff's sale on a judgment against 3. The Court can not judicially know the
him, and that his wife still survives, is
bad, unless it be further shown that the
sheriff's sale was subsequent to 1853.
Ibid.

15. Suit to recover the possession of per-
sonal property. Answer: 1. Property
in the defendants. 2. Property in others,
by virtue of a chattel mortgage from the
defendants. Reply That the property
was in the possession of the defendants,
by virtue of a contract between plaintiff
and defendants, as follows: "We have
this day received of S., in trust, the fol-
lowing property, (describing it,) the owner-
ship of which is exclusively vested in said
S.; which property we agree to keep until
October 1, 1859; and if we shall pay to
said S. $180, as set forth in our three
promissory notes, then the ownership of
said property shall vest in us," &c. (signed
by the defendants); that the defendants
had not paid the said notes, &c. Held,
that had the instrument been given as a
mere security for the payment of loaned
money, it would in legal effect have been
a chattel mortgage; but as the instrument
was given upon a sale and delivery of the
property, and its language plainly indicates
an intent that such sale and delivery
should not divest the plaintiff's title, un-
til the vendees should perform the condi-
tion subsequent, it must be held to be a
conditional sale.-Plummer et al. v. Shir-
ley,
380

16. Where a mortgagee has taken a personal
judgment on the notes secured by his
mortgage, and the judgment has been
stayed, and the stay not yet expired, he
may still foreclose his mortgage for the
debt.-O'Leary et al. v. Snediker, 404

Ibid.

4. A person contracting with a city, for the
improvement of a street in such city, is
bound to take notice of the provisions of
the general law regulating such improve-
ments; and must also ascertain whether
the Common Council have so conducted
the letting, as to render the property hold-
ers liable for the improvement. Ibid.
The corporation can not be made liable
for work done in the improvement of
streets, except as to the crossings of streets
and alleys, though the contract may have
been let by the Common Council without
the requisite petition from the property
holders.
Itid.

5.

6.

7.

8.

Quare: Whether the individual members
of the Common Council would, in such
case, be liable to the contractor for the
work done by him.
Ibid.

Cities are vested by the general law for
their incorporation with power to exact,
by ordinance, a license for retailing intox-
icating liquors within their limits; and
such ordinance would be consistent with
the general laws of the State.-The City
of Lawrenceburg v. Wuest,

337

Suit for false imprisonment. Answer:
that defendant was, at the time, &c., act-
ing as marshal of the city of Lafayette, and
as such, on view, arrested the plaintiff for
violating city ordinances. Three ordinan-
ces of the city were set out, viz., one
against intoxication, &c., and fixing a fine
therefor, not exceeding twenty-five dol-
lars; one against disturbing the peace of
the city by loud and unusual noises, &c.;
and one requiring the marshal to suppress
all breaches of the peace, and arrest all
persons, with or without warrant, found
violating any of the ordinances of the city,
in his view, and conduct them before the
mayor for trial. It was averred that the
plaintiff was found by the marshal drunk,
and disturbing the peace of the city by
loud and unusual noises, on the Sabbath
day, and, the mayor's Court not being in
session, was conducted by him to jail, and
after five hour's imprisonment was released
on parole, and on the next day appeared
before the mayor and was fined for drunk-
enness, Held, that there is no statute
making drunkenness a crime, or a mis-
demeanor; and that so far as it was an

7.

9. There is no authority for imprisoning a
man for an uncertain time, because he may 8.
be subject to a penalty, to be recovered in
an action in the nature of an action of
debt.
10. If the power exists in the ministerial
officer to arrest, on view, it is subject to
the statutes of the State, and general
known principles of law, which require the
officer to take the prisoner, forthwith, be-
fore a tribunal having jurisdiction, and pre-
fer a complaint against him.

Ibid.

as would have entitled the party to a new
trial, if the application had been made in
term time.
Ibid.

Where a party assigns causes for a new
trial, the Court can not look beyond them,
and grant a new trial as of right, under
the statute.-Koile et al. v. Ellis, Guard-
ian, &c.
301

The Court should not allow a second

motion for a new trial for the same cause,
or causes; but there is no reason why the
Court, in the exercise of a sound discretion,
may not, at the same term, allow a second
and even a third motion, for causes which
the party in the exercise of proper dili-
gence had failed to discover until after his
original motion was determined.-- White,
Administrator, &c. v. Perkins.
358
9. A suit for specific performance is not
within the statute providing for new trials
without cause, in certain cases.--Allen et
al. v. Davison,

416

2. Errors of law occurring at the trial are
waived, unless brought again to the atten-
tion of the Court in the motion for a new
trial.-Hill et al. v. Jamieson,
125

3. The record must show that the reasons
for a new trial were assigned in writing.
-Davis et al. v. Bolton et al.,
139

4. The statute does not, in express terms,
require the complaint for a new trial to be
sworn to. Allen v. Gillum, Executor, &c.,

234

NEGLIGENCE.

1. Where the owner of land through which
a railroad runs has received from the
company, in the assessment of damages,
an agreed compensation for erecting and
maintaining fences between the road and
his land, and fails to maintain such fences,
he can not, if by reason of such failure
an animal is killed by the cars of the
company, recover for the same, without
proof of negligence.-The Terre Haute, &c.
Railroad Co. v. Smith.

2.

3.

5. The correct practice, on the hearing of a
complaint for a new trial, is for the parties
to bring their witnesses into Court, and 4.
have them testify orally in reference to
the matters involved in the application.
Ibid.

6. The new evidence produced should,
viewed in connection with that already
offered on the trial, be of such a character

102

If a party does a wrongful act, or a right-
ful one in a negligent, wrongful manner,
whereby injury happens to another, such
act being the proximate cause, the party
committing the act may be liable for the
injury.-Howe v. Young,
312

Negligence consists in the omitting to do
something that a reasonable man would do,
or the doing something that a reasonable
man would not do; in either case causing,
unintentionally, mischief to a third party.
Ibid.

Whether a suit can be maintained, or not,
against the owner of an uninclosed lot
which formed part of a public common,
who dug a pit thereon and left it insuffi-
ciently covered, for the value of a gelding
which fell into the pit and was killed, de-
pends upon the probability there was that

See PRO- 1. A junior mortgagee is not a necessary,
though a proper, party to a proceeding by

4. Where a judgment lien is obtained upon
real estate upon which a mortgage lien
already exists, the judgment creditor has
only a general lien on the equity of re-
demption, and is not regarded in the light 2.
of a purchaser for a valuable considera-
tion; and hence, is not a necessary party
to an action to foreclose the mortgage.--
Gaines et al. v. Walker,
361

5. A demurrer for defect of parties must
point out the alleged defect.
Ibid.

6. Where no issue is made as to the plain-
tiff's interest in the subject of the action,
evidence tending to show that he is not 3.
the real party in interest is not admissi-
ble.--Staats et al. v. Burke,
448

PARTITION OF REAL ESTATE.
Semble, that one claiming the separate and
entire ownership of lands, can not claim
to be made a defendant to a proceeding
for the partition of the lands, instituted
by others claiming to hold as tenants in
common.-Baker v. Riley et al.,
479

PARTNERSHIP.

PLEADING.

See PRACTICE, 13, 16.

Though the averments of an answer may
not be directly controverted in the reply,
yet if the reply sets up facts in avoidance
of, or inconsistent with, the answer, the
answer can not be taken as admitted.--
Meredith et al. v. Lackey,

1

The answer of a junior mortgagee, set-
ting up his mortgage, and asking relief
under it, is a new and substantive plead-
ing, to enforce a separate and distinct de-
mand, and therefore the mortgagor can
not be required to respond to the same
immediately; but is entitled to such rea-
sonable time as may be necessary to pre-
pare his answer thereto.
Ibid.

Quare: Whether he is entitled to a con-
tinuance to the next term,, as to that
branch of the case.

Ibid.

4. If the answer of the junior incumbran-
cer does not tender any issue on the com-
plaint, nor ask any relief against the plain-
tiff, the proceedings of the plaintiff should
not thereby be delayed, and he may pro-
ceed to judgment, though the cause is
continued as to the junior mortgagee.
Ibid.

5. The Court may, in such case, control the
application of the surplus proceeds of sale.
so as to compel payment thereof to the
junior mortgagee, in the event of his re-
Ibid.

6.

1. A complaint by surviving partners should
set out the names of all the partners, and
show how the parties suing became sur-
vivors.--Hubbell et al. v. Skiles et al., 138
2. An unliquidated demand growing out of
unsettled co-partnership accounts, may,
the partnership having been dissolved, be
pleaded as a set-off.--Irish et al. v. Snel-
365 7.

son,

PAYMENT.

In a plea of payment, an averment of the
place of payment is matter of form, and
not of substance; and where a place of,
VOL. XVI.-36

covery.

Where the Court has erroneously refused
the mortgagor a reasonable time to answer
the claim of the junior mortgagee, the
error is not waived by filing an answer,
to save a default.
Ibid.
Suit upon a promissory note given by the
Turnpike Company for the purchase of the
Central Plank-road. Answer: 1. That
the purchase of the plank-road was not
necessary. 2. That the plaintiff's had not
conveyed the road by such a deed as by
the contract of sale they were to have

made. Held, that as the turnpike com- !
pany was incorporated by a private act,]
the Court could not judge of the quantum
of power conferred, unless the act was
pleaded and proved; and as this was not
done, the first paragraph of the answer
did not properly raise the question of the
power of the company to make the pur-
chase. Charleston, &c. Turnpike Co. v.
Willey et al.,
8. The second paragraph of the answer was
bad, for not setting out a copy of the deed,
or showing, by an averment of its contents,
how it differed from that agreed to be
made.

-

34

Ibid.

9. When an answer, setting up usury, pro-
fesses to answer the whole cause of action,
when it in fact shows a bar to a part only,
it is bad.-Moorman et al. v. Barton, 39

12.

10. It is not necessary that relief should
be prayed at the close of each paragraph
of an information, but the prayer at the
close of the information will be taken dis-
tributively and applied severally to the
paragraphs. The State ex rel., &c. v.
Bailey et al.,
46
11. Suit by the Trustees of the Vincennes
University against Judah, to recover the
value of certain bonds of the State of
Indiana, and the coupons thereto attached,
received by him as the attorney of the
University and converted to his own use.
Answer, admitting the reception and de-
tention of the bonds, and setting up by
way of set-off, or counter claim, that the
trustees were indebted to him in a large
sum for services as attorney, in conducting
suits for them to establish their title to
the Seminary township in Gibson county,
and in procuring the passage of the law
compromising said claim by the issuing of
said State bonds, and for expenses neces-
sarily incurred in procuring the passage
of said law, under the order of the trus-
tees, by which alone said bonds were 15.
procured. Reply: 1. That the defendant
unlawfully and corruptly converted and
disposed of said bonds to his own use.
That defendant, in 1843, expressly agreed
to prosecute plaintiffs' said claim for $900
for services and outlays; that the amount
had been fully paid to him, and that the
outlays mentioned in the answer were
the same intended by said contract. 3. As
to the fees charged in said answer, that in 16.
1853, a resolution was passed by thei

trustees, and accepted by the defendant,
allowing him for his services rendered and
to be rendered, a sum equal to one fourth
of the net proceeds of said suit, to be
paid pro rata out of the proceeds of
said suit as the same should be paid
into the treasury of said board; that at
the time of the conversion of said bonds,
no portion of said proceeds had been paid
into said treasury, and that defendant was
not entitled to any fees until such proceeds,
or some part thereof, should be so paid in.
4. As to the expenditures, that the friends
of the State University contributed as much
as defendant to the passage of said law;
that defendant unlawfully and corruptly
incurred said expenses in hiring certain
persons to aid him in improperly influenc-
ing members of the Legislature, and to
bribe such members, without the knowl-
edge or consent of said trustees; and that
when said unlawful and corrupt acts
became known to them they repudiated
the same. Held, that it was manifestly
the intention of the code, that parties liti-
gant might, and perhaps should, determine
in each suit all matters in controversy
between them which could legitimately be
included therein, keeping in view substan-
tial rights.-Judah v. The Trustces of the
Vincennes University,
56

While it is not determined whether a

set-off or counter claim can, under our
code, be pleaded to an ordinary action
for the conversion of property, in this
case the pleadings developed such a neces-
sity for an accounting between the parties
as made it right to admit the defense.

Ibid.

13. The first reply was good as an argu-
mentative denial of the answer. Ibid.

14.

Objections to a pleading for duplicity or
redundancy must be taken by motion, not
by demurrer.
Ibid.

As the Court can not judicially know
whether or not there are proper and
legitimate modes of using money in pro-
curing the concurrence of the members
of the Legislature in such a settlement, it
can not say that the averment of the
answer, that the passage of the law was
procured by the expenditure of said money
was immaterial or vicious,
Ibid.

An issue can not be made collaterally,
nor by the State directly, to determine