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V. New.

it a person not residing within the corporate limits, and it May Term,

1860. was held that it could. This closed the case. The point involved in the Wisconsin case was this.

GULICK The constitution, art. 6, § 4, provided that sheriffs should “be ineligible for two years next succeeding the termination of their offices." A sheriff, in office at the time the constitution was adopted, was elected his own successor under the constitution; and it was held that he was legally elected, and that the disability imposed by the constitution related only to elections and terms held under the constitution. The decision of this point disposed of the case, and what is said beyond it, as in the Georgia case, is not improperly, but still is very loosely and carelessly said, and is not binding as authority.

But while there are no authorities adverse to the second proposition above laid down, there is a cloud of them vindicating its correctness. As the attention of the Court below does not appear to have been called to them, we shall here indicate where they may be found and examined.

Mr. Grant, a late, accurate English writer on Corporations, at p. 208, says: “As has been stated, a disqualification patent or notorious, at once causes the votes given for the candidate laboring under it to be thrown away; the same would probably be held to be the case where the electors had the means of knowledge of the candidate's qualification, or the contrary, and might have ascertained the facts if they had pleased.” Numerous cases are cited to sustain these positions.

Judge Cushing, in his American work on the Law of Legislative Assemblies, at pp. 66, 67, lays down the same doctrine as deducible from the decided cases.

3. Where the ineligibility of a candidate arises from his holding, or having held, a public office, the people within the jurisdiction of such office, are held in law to knoware chargeable with notice—of such ineligibility; the votes given for such candidate are of no effect; and his highest eligible competitor is elected. Grant on Corp., supra, p. 107.- Biddle v. Willard, 10 Ind. R. 62, on p. 68.

May Term,




The Court below fell into error on this point by viewing Wallace simply in the character of mayor of Indianapolis. As mayor, he was simply a corporation officer, and, perhaps, necessarily known as such only within the city limits. But he was more than a city officer. He was a judicial officer, a judge of a Court, with jurisdiction coëxtensive with the county limits, created to administer the general laws of the state to the extent of his jurisdiction. In this capacity of judge, the people of the county were bound to know him, and were bound to know the disability, as to the right to hold other offices, which his character as judge brought upon him by the constitution and laws of the state.

The error of the Court below was as if a man were holding the offices of councilman of the city, and representative in the state legislature; and the Court, in judg. ing of the question of eligibility to other offices, should look at him simply as a councilman, ignoring altogether his legislative office.

Wallace, then, at the time he was voted for for sheriff, was ineligible; the people knew it; the votes cast for him were thrown away, and Gulick was elected, and has, since the election, been de jure, at least, sheriff of Marion county.

Per Curiam.— The judgment is reversed with costs. Cause remanded, &c.

J. Morrison, N. B. Taylor, J. E. McDonald, and A. L. Roache, for the appellant.

L. Barbour, J. D. Howland, and H. O'Neal, for the appellee.

BOWEN and Another v. FISHER.

Monday, Víay 28.

APPEAL from the Shelby Circuit Court.

Per Curiam.—This was an action to recover money, and to enforce a vendor's lien.

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The complaint did not aver that the defendants were May Term, insolvent, nor that there was no personal property, nor any

1860. equivalent averment.

ILAMAR Denial. Trial. Judgment for plaintiff for the amount Diнмiск. of the note, and that the same was a lien upon the land described, and order for its sale.

The only question in the case is as to whether the judg. ment, declaring the lien and for the sale of the land, should have been rendered in the absence of the before-mentioned averments.

On the authority of Scott v. Crawford, 12 Ind. R. 411, the judgment for the money, and declaring it a lien, is affirmed. The order directing the sale of the specific property, in the first instance, is reversed at the cost of the appellee.

M. M. Ray, for the appellants.
E. H. Davis and C. Wright, for the appellee.

Hamar v. DIMMICK.

APPEAL from the Warren Court of Common Pleas. Monday,

May 28. Perkins, J.-Dimmick sold a wagon to Hamar, to be paid for by the delivery, at a certain time, of five hundred and fifty bushels of corn. This suit was brought to recover for an alleged failure to deliver the corn agreed upon.

Answer, in general denial, and in averment of a delivery of all the corn according to agreement.

Trial; judgment for plaintiff for 15 dollars and costs.

The judgment for plaintiff for costs was right. Payment in specific articles could be proved under.the issues. Perk. Pr., 368.

The defendant further answered that he tendered simply what the corn to be delivered was worth, and no more, after he had failed to deliver the corn.


May Term, This answer was bad. Ind. Dig., p. 787, § 17. The 1860.

tender should, at all events, have included interest to time LAUGHERY of tender. How. (N. Y.) Code, 238.! MCLEAN. Query, are not general denial and tender inconsistent

defenses? How. (N. Y.) Code, p. 238.—Perk. Pr., p. 226. Walker says they are. Am. Law, 3d ed., 579. See, also, as to inconsistent pleading, generally, Steph. Pl., 273, 274, and 1 Chit. Pl. 560.

And, again, has the code prescribed the mode in which tender must be made to bar costs, viz., by an offer to confess judgment? Perk. Pr., 89.

In this case, the plaintiff recovered one-third more than was tendered; hence, the tender could not bar costs.

Per Curiam.The judgment is affirmed with 10 per cent. damages and costs.

B. F. Gregory, J. Harper, and J. N. Brown, for the appellant.

R. A. Chandler, for the appellee.


14 106 141 366

14 106 159 411

In'a suit upon a promissory note given for the purchase-money of land, an

answer setting up a failure of title, without showing breach of covenant or fraud, is bad on demurrer.

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APPEAL from the Wabash Circuit Court.

WORDEN, J.-Complaint by the appellee against the appellant upon a promissory note.

The complaint alleges that the note was given in part consideration for the sale by the plaintiff to the defendant of a certain piece of land, and that the plaintiff delivered immediate possession thereof to the defendant, &c., and the plaintiff claims and seeks to enforce a vendor's lien on the land for the amount of the note.

The defendant answered by a general denial. He also


filed the following special answer, viz.: “And defendant, May Term,

1860. for answer to said complaint, alleges that said note was given, and is and was, without any consideration what- LAUGHERY ever, in this, to-wit, that the said plaintiff had not, at the McLean. time of the making of the alleged conveyance of the said premises named in said complaint, nor has he since had, any title or interest therein; and that in and by said conveyance, no title or interest therein passed to said defendants; wherefore," &c.

A demurrer was sustained to the special paragraph, and exception was taken.

The cause 'was tried by the Court, and resulted in a finding for the plaintiff. The defendant moved for a new trial, but no written reasons appear to have been filed. The motion was overruled and judgment entered on the finding, giving the plaintiff a lien on the land mentioned for the payment of the judgment.

The appellant assigns for error the ruling on the demurrer; the overruling of the motion for a new trial; and the judgment that the plaintiff hold a lien on the land, &c.

There having been no written reasons filed for a new trial, we are not advised upon what ground it was asked, and could not disturb the finding, even were it not sustained by the evidence.

Objection is here also made to the form of the judg. ment as to the manner of enforcing the lien. If


objection exist in this respect, it should have been made in the Court below, which was not done. No question in this respect having been made in the Court below, it is too late to make it for the first time in this Court. Manly v. Hubbard, 9 Ind. R. 230.-Wolcott v. Yeager, 11 id. 84.

This brings us to the main question involved in the case, viz., was the demurrer to the special paragraph of the answer correctly sustained?

From the complaint and answer together, it is fairly to be inferred that the plaintiff had made a conveyance, purporting, at least, to convey to the defendant the land mentioned. It is not directly averred in the complaint that a conveyance had been made, but the answer admits the

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