May Term, conveyance, and avers that no title passed thereby, the 1860. plaintiff having no title to convey. LAUGHERY V. MCLEAN. The deed is not set out, nor is it averred in the answer that it contained any covenants of seizin, right to convey, or any other covenants whatever. If the deed contained any covenants that were broken, the original or a copy thereof should have been filed as the foundation of the defense (Code, § 78), and there should have been such facts averred as would show a breach of the covenants relied upon. It is not necessary for us here to determine whether the want of any title in the plaintiff, would be a breach of the covenant of seizin and right to convey, as long as the defendant was in the undisturbed possession of the land; as no covenants are set out or relied upon. For aught that appears, the conveyance was a mere quitclaim, without any warranty whatever; and in such case, in the absence of fraud, a want or failure of title cannot be set up in bar of the action for the purchase-money. This doctrine is very clearly stated in the case of Barkhamstead v. Case, 5 Conn. R. 528. A bill in chancery was filed for relief against a promissory note. HoSMER, C. J., in delivering the opinion of the Court, says: "The ground on which the decree in this case was rendered by the county Court, undoubtedly was, that the promissory note to Barkhamstead was totally without consideration, by reason of the non-existence of the title to the land sold; and, therefore, that the note was fraudulent and void. If there was no fraud and no covenant to secure the title, the purchaser has no remedy for his money, even on failure of title, either at law or in equity. Abbott v. Allen, 2 Johns. Ch. 519.- Chesterman v. Gardner, 5 id. 29. The grantee of land, if he takes no covenants, and there be no fraud in the sale, has assumed on himself the risk of title; and any security given by him for the purchase-money, is on a legal consideration. The bill of the plaintiff charged no fraud, without which allegation fraud was not in issue; and from the facts exhibited in the finding of the Court, the entire case seems to have been, that Barkhamstead believed and affirmed that they had title, when, in fact, they May Term, 1860. V. had none, and Case, confiding in the same, purchased the land in question, and gave in payment the note now in suit. The maxim caveat emptor peculiarly applies in this CARPENTER case. The defendant in error should have taken proper THE STATE. covenants to guaranty the title. In a matter embracing neither fraud nor covenant, the purchaser acts at his own risk, and voluntarily foregoes any remedy, if the title should fail." No fraud is charged in the answer in the case at bar, and we are of opinion that the demurrer to it was correctly sustained. Per Curiam.-The judgment is affirmed with 5 per cent. damages and costs. J. D. Conner, for the appellant. Kidd, J. U. Pettit, and C. Cowgill, J. M. Washburn, for the appellee. CARPENTER V. THE STATE. An information for keeping a house for gaming, is not bad for not giving the names of the persons who gambled. An information must be based upon an affidavit first filed. It is not sufficient that the information itself is verified. APPEAL from the Steuben Court of Common Pleas. HANNA, J.—This was a prosecution for keeping a house to be used for gaming. Motion to quash overruled; trial and conviction. It is urged that the information is bad for two reasons— 1. Because it does not give the names of the persons who gamed. This was not necessary under the peculiar form of the information. Sowle v. The State, 11 Ind. R. 493.- Winemiller v. The State, id. 516. 2. There was no affidavit, other than a general one, attached to the information, verifying the truth thereof. Is Monday, May Term, this sufficient, or ought an affidavit, separate from the in1830. formation, to be first filed, to base such information upon? MORRISON 2 R. S. p. 364. V. THE EATON TON RAIL We are of opinion that, looking to the provisions of the AND HAMIL whole statute upon the subject of prosecutions by information, it was intended such proceeding should be based upon an affidavit first filed; and that it is not, therefore, sufficient that the information itself is merely verified. ROAD CO. The charges to the jury are complained of; but the view taken of the points above noticed renders it unnecessary to pass upon those charges. Per Curiam.-The judgment is reversed. manded, &c. A. Ellison, for the appellant. Cause re J. E. Mc Donald, Attorney General, for the state. MORRISON V. THE EATON AND HAMILTON RAILROAD COM PANY. Monday, A clause in the charter of a corporation authorizing the company to borrow money "on such terms as might be agreed upon between the parties," empowers them to borrow at a rate of interest beyond that established by the general law. APPEAL from the Wayne Circuit Court. PERKINS, J.-Robert Morrison sued the defendants upon a promissory note for 9,426 dollars, dated November 30, 1854, and due three years after date, with 12 per cent. interest. The cause was submitted to the Court without a jury, and "the Court found for the plaintiff the principal of said note alone, and refused to allow any interest thereon, on the ground that the note was, on its face, usurious," and rendered judgment accordingly. The plaintiff appealed, and alone assigns errors in this Court. The only one relied on by the plaintiff here (and no cross-errors are assigned by the defendant), is the refusal to allow interest on the note. The charter of the corporation that negotiated the loan was a special one, granted in 1846, and authorized the borrowing of money "on such terms as might be agreed upon by the parties." And the question is, did that clause of the charter empower the company to borrow money at a rate of interest. beyond that established by the general law of the state? That the clause was inserted in the charter expressly to enable the corporation to borrow money on such higher rate of interest, we have no doubt; and if it failed to accomplish that end, its insertion was nugatory-powerless for any purpose whatever; for as to all other terms of the contract of loan, the general grant of power to borrow, perhaps, indeed, the simple creation of the corporation, would have been adequate. See Smead v. The Indianapolis, &c., Railroad Co., 11 Ind. R. 104. We know historically that at the time the charter in question was granted, money could not be obtained by such corporations at 6 per cent., the legal rate of interest; and, hence, in the application for charters, special powers on the subject were usually sought. They were sought expressly to enable the corporations to give a rate of interest that would induce the loan. And the rate of interest of a loan is certainly one of the most important of the terms upon which it is negotiated. It is embraced, therefore, by the strict letter, as beyond doubt it is, as we have shown, by the spirit, of the provision of the charter. Per Curiam.-The judgment is reversed with costs. Cause remanded, with instructions to the Court below to render the judgment for an amount covering the principal due, with interest thereon at 12 per cent. J. S. Newman and J. P. Siddall, for the appellant. O. P. Morton, W. A. Bickle, W. P. Benton, and J. F. Kibbey, for the appellees. May Term, 1860. MORRISON V. THE EATON TON RAIL May Term, 1860. THE NEW ALBANY, &C., V. PETERSON. Monday, 14 112 128 590 14 112 131 280 THE NEW ALBANY AND SALEM RAILROAD COMPANY V. PETERSON. If the owner of land make an excavation within his own premises, and thereby drain the well or subterranean spring of another, it is damnum absque injuria, and no action will lic. APPEAL from the Tippecanoe Circuit Court. WORDEN, J.-Complaint by the appellee against the company for an injury to a lot belonging to the plaintiff, causing a well thereon to be drained by the construction of the defendants' road. Judgment for the plaintiff for 50 dollars. The cause was submitted to the Court on the following agreed statement of facts: "It is agreed that the plaintiff is the owner in fee of the lot described, &c.; that the defendants, in the construction of their road under their charter, caused the said well mentioned in the complaint to be drained, dried up, and the water diverted therefrom, by means of which the plaintiff was damaged to the amount of 50 dollars. It is admitted that the railroad passes near to, but does not touch the real estate aforesaid, nor is any part thereof appropriated for the use of said railroad. It is further agreed that said damage was caused by the construction of said railroad, by the defendants, in the usual and proper manner of construction of such roads, and before the commencement or pendency of this suit, doing no unnecessary damage: the draining being caused by cutting off the underground springs or fountain which supplied the well, in excavating for the roadbed of their railroad. It is agreed that if the law is with the plaintiff, on the above agreed state of facts, then judgment is to be rendered for the plaintiff for said sum of 50 dollars and costs; but if the law is for the defendants, then judgment shall be rendered for the defendants." The question presented by the above facts agreed upon, is somewhat novel, important, and interesting. The rights of the owners of the soil to superficial streams of water |