2. Complaint in Justice's Court.-Description of Property.-Fixture.-In
an action to recover the possession of personal property, commenced
before a justice of the peace and appealed thence to the circuit court,
the cause was tried upon a complaint which described the property in
controversy as "one crib of corn, said crib being the north crib of
three cribs situated south of the house."

Feid, on motion to dismiss the action for want of a sufficient complaint, and
on motion in arrest of judgment, that the complaint sufficiently de-
scribed the property.
Held, also, that, if the plaintiff sought also to recover the crib, the question
as to whether it was part of the realty depended upon whether or not it
was set into or attached thereto, and was matter of defence.

REPUTATION

See EVIDENCE, 2.

RES ADJUDICATA.

See INJUNCTION, 1 to 3.

REVIEW OF JUDGMENT.

See JUDGMENT, 2, 3.

RULE OF PROPERTY.

See WILL, 18.

SALE.

Smith v. Stanford, 392

See CONTRACT, 3, 11 to 14; WARRANTY.

SATISFACTION.

See JUDGMENT, 9.

SHERIFF.

See EXEMPTION FROM EXECUTION; HABEAS CORPUS.

SHERIFF'S SALE.

See MORTGAGE, 1, 2; REAL ESTATE, ACTION TO QUIET TITLE, 6.
1. Vendition Exponas.- When Issued.-Sheriff's Return.-Under the statute,
2 R. S. 1876, p. 212, sec. 453, a venditioni exponas can only issue where
property levied upon remains unsold; and a return of an execution
which recites, that "The real estate levied upon, sold to " A. "April 6th,
1857," for a certain sum-"purchase-money not paid," shows that the
land levied upon remained unsold when such return was made. The
language used is substantially equivalent to saying that the land
was bid off by" A. " April 6th, 1857," for a certain sum-purchase-
money not paid," and the plain inference is, that the title to the land
had not passed from the owner, and a venditioni exponas could be prop-
erly issued.
Dawson v. Jackson, 171
2. Setting Aside Sheriff's Sale.-Inadequacy of Price-Innocent Purchaser.-
Notice. The inadequacy of the price for which a sheriff sells real estate
will not, of itself, authorize a court to set aside such sale, after the
property has come into the hands of an innocent purchaser, without
notice of any other irregularities, especially after the lapse of many years
from the date of such sale, and after descent of the land has been cast
upon the heirs of such purchaser.

Ib.

3. Sale in Parcels.-Action to Recover Real Estate.-- Waiver.-Estoppel.-The
law requiring sheriffs to sell in parcels land levied upon was intended
for the benefit of the execution defendant. But such right may be waived
by the defendant; and, having waived it by a request that the land be
sold as an entirety, he can not, in an action to recover the land,

by one holding the sheriff's deed, be heard to complain that it was
thus sold.
Joyce v. The First National Bank, etc.. 188
4. Same.-Presumption that Levy and Sale are Regular.-Where the pur-
chaser of land at a sheriff's sale is not the plaintiff in the execution
on which it is sold, he has the right to presume that the levy and sale
were regular, and that the sheriff had taken all the steps, such as the
demand of personal property, etc., necessary to justify the levy upon
the land.

Ib.

5. Same. Want of Title.-An execution defendant can not set up his own
want of title to land sold on execution against him, to defeat an action
by the purchaser to recover possession.

Ib.
The local hab-

6. Publication of Notice.-Local Habitation of Newspaper.-
itation" of a newspaper is the town or city, and not the particular
building in such town or city, in which it is published; and where real
estate, lying within the limits of a town or city, is about to be sold at
sheriff's sale, notice of the sale may be published in any newspaper
printed in such town or city, without reference to the particular location
of the building in which such newspaper is printed.

SLANDER.

Greenlee v. Marks, 418

1. Perjury Committed in Testifying in an Inquest of Lunacy.-A proceeding
to test the sanity of a person alleged to be insane is a judicial proceed.
ing; and perjury imputed to a witness, as to testimony given therein by
him, is slanderous.
Hutts v. Hutts, 214

2. Same.-Producing Party Court.-Notice of such proceeding to the
person alleged to be insane is not required by the statute authorizing
such inquest, and the court trying the same may, on being satisfied that
such person can not be produced in court without injury to his health,
dispense with his personal appearance.

Ib.

3. Same.-Actionable Words.-It is competent for the court to inform
itself as to the health of such person by the testimony of a witness,
and perjury imputed to a witness in testifying as to such matter is
actionable.

Ib.
4. Same.-Hearsay.-Statements made by the person alleged to be insane,
concerning his health, are not competent evidence for the defendant in
such action.

Ib.

5. Same.-Evidence.-The fact that such witness bore ill-will to the person
alleged to be insane, at a time when he instituted the proceeding to test
the sanity of such person, is not competent evidence on behalf of the
defendant, in an action by the witness for slander in charging him with
committing perjury while so testifying.

Ib.

6. Same.-Justification.-Instruction.-Where, in such case, the defendant
pleads in justification, it is not error in the court to instruct the jury, that
if, from all the evidence, they have a reasonable doubt as to whether the
plaintiff had committed the perjury alleged, the defendant has not sus-
tained such plea.

SPECIAL FINDING.

See PRACTICE, 5, 6, 12, 16, 17, 18.

SPECIFIC PERFORMANCE.

Ib.

Contract.-Mortgage.- Defeasance, Effect of Surrender of.-Counter-Claim.--
Redemption. Instruction.-A complaint to enforce specific performance
alleged, that the plaintiff, on a certain date, was the owner of certain
lands, and, being desirous of obtaining loans of money from time to
time. agreed with the defendant, that, in consideration of his undertak-
ing to endorse for the plaintiff as he might direct, not exceeding a cer-
VOL. LXI.41

tain amount at any one time, he would convey to said defendant the lands mentioned, to indemnify him on account of said endorsements; that, in pursuance of such agreement, said lands were so conveyed to the defendant by deed; that, at the same time, the defendant executed and delivered to plaintiff a defeasance, binding himself to reconvey said lands, if saved harmless from said endorsements; that, subsequently, the plaintiff and defendant had an accounting of all matters of indebtedness between them, and nothing was found to be due the defendant from the plaintiff; and that the plaintiff then notified the defendant that he was released from all former endorsements, and would not be required to make any more, and demanded a reconveyance of said lands, which the defendant refused. A second paragraph charged a refusal of the defendant to endorse for the plaintiff as stipulated. To this complaint a general denial was filed, and also a special paragraph of answer, averring, that, prior to the conveyance of said lands to the defendant, the plaintiff had executed to him a note, together with a mortgage on said lands to secure its payment; that, after the execution of said deed and defeasance, the plaintiff became indebted to the defendant in other sums of money; that, on said settlement between the parties, it was agreed that the defendant should release the plaintiff from said mortgage and all other claims, and that the plaintiff should surrender said defeasance for cancellation, and that defendant should hold said lands in fee-simple and discharged of all conditions; that the plaintiff so surrendered and delivered up said defeasance as cancelled; and that the defendant thereby released him from all demands, concluding with a prayer that the defendant should be decreed the owner of said lands, free from the equity of redemption.

Held, that the surrender of the defeasance, under the circumstances alleged, vested in the defendant an absolute title to the lands in suit.

Held, also, that the special paragraph of answer can not perform the double office of answer and counter-claim, and, having been treated by the parties as a counter-claim, it should be so regarded, and is sufficient on de

murrer.

Held, also, that an instruction to the jury in such case. that the plaintiff was required to establish more on the trial, as regards the matters embraced in such settlement, than the conditions of the defeasance stipulated, was

erroneous.

Held, also, there being evidence on the trial tending to show, that, at the time of such settlement, the defendant promised orally to reconvey to the plaintiff, and that he had made some admissions as to the terms of the settlement, and as to his promise or liability to reconvey those lands, that an instruction, which told the jury that "this testimony can be considered by you in determining the question as to whether there was such an accounting had between the parties or not, but it can not be considered as fixing any original liability on the defendant," and that, if the plaintiff conveyed to the defendant absolutely in the first instance, "his after oral promise to reconvey would not be binding, but the evidence may be considered in so far as it tends to throw light upon the question as to whether there was a full and final accounting between the parties," in connection with the defeasance, was erroneous as probably misleading the jury as to the weight to which such evidence was entitled.

SPOLIATION.

Wilson v. Carpenter, 495

See PROMISSORY NOTE, 7, 8, 9.

STARE DECISIS.
See DECEDENTS' ESTATES, 1.

STATUTE OF FRAUDS.
See CONTRACT, 7, 11, 12, 14.

Contract to Pay Debt of Another.-Parties.-A., being employed by a merchant to sell merchandise for cash only, with a verbal agreement that he should be personally responsible to his employer for all uncollectible accounts of sales made by him on credit, sold a bill on account to one, on a written order addressed to him by B., charging the same against the latter in the account book of his employer, and then, without having paid or assumed the same, brought an action therefor, in his own name, against B.

Held, that such verbal agreement between A. and his employer was within the statute of frauds, and therefore void, and that such action could be maintained only by the employer. Smock v. Brush, 156, 176

STATUTE OF LIMITATIONS.

See REAL ESTATE, ACTION TO QUIET TITLE, 2, 3.

STATUTES CONSTRUED.

See BUILDING ASSOCIATIONS, 1 to 4; PARTITION, 3; TOWNSHIP, 3; VENUE, CHANGE OF, 2.

1

SUBSCRIPTION.

See CONTRACT, 6, 7.

SUMMONS.

See JURISDICTION; PROCESS.

SUNDAY.

See CONTRACT, 6; PRACTICE, 2; TELEGRAPH COMPANY, 4.

SUPERIOR COURT.

See PRACTICE, 8, 15; SUPREME COURT, 15.

SUPREME COURT.

See BILL OF EXCEPTIONS; COUNTY TREASURER, 4; CRIMINAL LAW, 11 14, 15, 20, 21; NEW TRIAL, 2; PLEADING, 1; PRACTICE, 4, 6, 8, 12, 15, 17, 19, 20; REPLEVIN, 1; TOWNSHIP, 4; WILL, 12, 17, 18. Weight of Evidence.-Where there is evidence tending to support a verdict or finding, the Supreme Court will not disturb it on the mere weight of evidence. Sibbitt v. Stryker, 41 Instructions to Jury.- Where instructions given to a jury are neither signed by the judge nor embodied in a bill of exceptions, they form no part of the record on appeal to the Supreme Court.

2.

Ib.

3. Assignment of Error.-An assignment of error, questioning the correctness of an alleged ruling, which in fact does not appear by the record to have ever been made, presents no question for decision.

4.

5.

6.

7.

8.

Reeder v. English, 78 Bill of Exceptions.-The signature of the proper judge is necessary to the validity of a bill of exceptions.

Ib.

Exception to Judgment.-An objection to the form or substance of a judgment can not be made for the first time in the Supreme Court on appeal. Hessong v. Rosenstihl, 78 Record.-New Trial.-Where error is assigned on the ruling on a motion for a new trial, such motion should be in the record on appeal to the Supreme Court. Ib. Instruction.— New Trial.--Assignment of Error.-Error in giving or refusing to give an instruction to a jury is ground for a new trial, but can not be assigned independently as error, on appeal to the Supreme Court. Bridgewater v. Bridgewater, 82 Weight of Evidence.-Where there is evidence tending to support the verdict of a jury, the Supreme Court will not disturb it on the mere weight of evidence.

Ib.

9.

Weight of Evidence.-The Supreme Court, on appeal, will not set aside the verdict of a jury on the mere weight of evidence, where there is evidence tending to sustain it. I. P. & C. R. W. Co. v. Maguire, 140 10. Pleading.--Assignment of Error.-Where any one of several paragraphs of a complaint is sufficient, an assignment of error, on appeal to the Supreme Court, questioning the sufficiency of the complaint is not available, though the remaining paragraphs be suffiCaress v. Foster, 145

cient.

11. Record.-Affidavit.-Certain affidavits supporting, and others resisting, an application for relief against a judgment, were, without any order of court making them part of the record, copied by the clerk into the transcript of the cause on appeal to the Supreme Court, but, in the bill of exceptions, they were merely referred to by naming the several affiants, and by leaving blanks therein for their insertion, containing the sign "h. i." Held, that such affidavits form no part of the record. Kimball v. Loomis, 201 12. Ruling on Demurrer.-Failure to Except.-Where no exception is taken to the ruling on a demurrer, no question as to such ruling can be presented to the Supreme Court on appeal. Hutts v. Hutts, 214 be 13. Sufficiency of Complaint.-The sufficiency of a complaint may questioned in the first instance in the Supreme Court, on appeal. 14. Question of Law Reserved.--Evidence.-New Trial.-Where no motion for a new trial has been made, no question is presented to the Supreme Court on appeal, on questions of law reserved, as to matters of evidence, under section 347 of the practice act. Rousseau v. Corey, 250 15. Jurisdiction. - Death of Party.-Executor.-Superior Court.-The defendants in an action in the Marion Superior Court appealed to general term, from the judgment rendered against them at special term. After the submission of the appeal, one of the defendants died. Subsequently, the judgment at special term was affirmed, whereupon the defendants excepted, and appealed to the Supreme Court.

Ib.

Held, that the superior court at general term, having obtained jurisdiction over the person of the deceased defendant, in his lifetime, had jurisdiction of the case, and had the power to decide it after his death. Held, also, that the appeal to the Supreme Court, having been taken after the death of the deceased defendant, as to him, is a nullity. Held, also, that the executor of the deceased defendant can come into the Supreme Court, after the appeal has been perfected as to the other defendants, and be admitted as a party to the appeal.

Branham v. Johnson, 259 16. Weight of Evidence.-Where there is evidence tending to support a verdict, the Supreme Court, on appeal, will not disturb it on the mere weight of evidence. Henline v. Jacoby, 298 17. Competency of Juror.- Weight of Evidence.-Where the evidence is conflicting in regard to the competency of a juror to sit as such, the rul ing of the lower court in sustaining a challenge to him will not be in terfered with by the Supreme Court. Coryell v. Stone, 307

18. Same. Such a ruling is not ground, in any event, for reversing a judg ment, unless it be shown that the party complaining thereof was injured thereby.

Ib.

19. Instructions.-Must be Numbered.-Instructions to a jury, asked and refused, must be distinctly numbered, in order that error assigned upon such refusal may be presented to the Supreme Court on appeal. Ib. 20. Same.--Where instructions given to the jury are not in the record, on appeal, the refusal of proper instructions asked by a party is not avail. able as error.

21. Weight of Evidence.-Where there is evidence tending to support the