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Nov. Term,


McNeer and Others v. Dipboy.



A pleading denying the execution of a written instrument, is valid without

being sworn to.

Saturday, January 14, 1860.

APPEAL from the Madison Court of Common Pleas.

Worden, J.—Complaint by the appellee against the appellants on a note.

Answer, that after the making of the note, and before the commencement of the suit, the plaintiff, for a valuable consideration, executed a written release, whereby he released the defendants from the payment of the note, which release was lost, &c.

Reply in denial.

Demurrer to the replication overruled, and judgment for the plaintiff.

The only point made in the case, relates to the ruling of the Court on the demurrer.

It is insisted that the replication was bad because it was not sworn to. Whatever may have been the rule under former statutes which are now repealed, it is settled under our present practice that pleadings denying the execution of written instruments are valid without being sworn to. Vide Magee v. Sanderson, 10 Ind. R. 261.

No question is raised as to the effect of pleadings in such case, not verified, upon the evidence to be adduced under them.

Per Curiam.—The judgment is affirmed with 5 per cent. damages and costs.

M. S. Robinson, for the appellants.
J. W. Sansberry, for the appellee.

Nov. Term,



v. APPEAL from the Greene Circuit Court.

Vance. Per Curiam.—In this case, there was no motion for a

Saturday, new trial, and the errors assigned relate to errors commit- January 14,

1860. ted on the trial.

The judgment is affirmed with costs.
0. H. Smith, for the appellant.
D. M'Donald, for the appellee.

LITTLE and Others v. VANCE.

APPEAL from the Marion Circuit Court.


January 14, Perkins, J.—Complaint to foreclose a mortgage, the in- 1860. stallments all being due.

Answer, that there was a separate agreement in writing that the notes, payable on the face in cash, might be discharged, when they became due, in bonds of a certain railroad company. Demurrer to the answer sustained.

Judgment for the plaintiff; and order that, on failure to pay, &c., so much of the mortgaged premises as might be necessary therefor be sold as lands are sold on execution, to make the judgment, &c.

The demurrer was rightly sustained for two reasons-
1. The written agreement referred to in the answer, or
copy of it, was not filed with the answer.

2. The notes were payable in cash, and the written agreement gave a privilege to discharge them in railroad bonds. It will bear that construction as pleaded, and the ambiguity, if one exists, on account of the instrument not being filed or copied, must operate against the pleader.

See, as to the election to pay. in bonds, Parks v. Marshall, 10 Ind. R. 20, cited in Williams v. Jones, 12 id. 561.

The form of the judgment was right.


Nov. Term,


Per Curiam.—The judgment is affirmed with 3 per cent. damages and costs.

R. L. Walpole and K. Ferguson, for the appellants.
J. L. Ketcham and I. Coffin, for the appellee.


v. Dick

Knour and Others v. Dick.

Except where the code has otherwise provided, mutuality is essential to a


Saturday, January 14, 1860.

APPEAL from the Warren Court of Common Pleas.

WORDEN, J.-- Dick, the plaintiff below, brought suit against Knour, Hixon, and Swank, on a joint note made by the defendants to the plaintiff. Knour pleaded, amongst other things, by way of set-off, a debt due to him from the plaintiff.

A demurrer was sustained to the plea, and the correctness of this ruling is the only question involved in the case.

The decision below on the demurrer, was undoubtedly correct. The debt sought to be set off lacked the essential of mutuality. It was due from the plaintiff to only one of the defendants.

The code of 1852 has not dispensed generally with the necessity of mutuality, in order that one debt may be set off against another. Blakenship v. Rogers, 10 Ind. R. 333.

By $ 58 of the code it is provided that, “in all actions upon a note or other contract against several defendants, any one of whom is principal and the others sureties therein, any claim upon contract in favor of the principal defendant and against the plaintiff or any former holder of the note or other contract, may be pleaded as a set-off by the principal or any other defendant."

In the cases provided for in the foregoing section, mutuality is dispensed with, but that section has no application


to the case at bar. It does not appear that Knour was the Nov. Term, principal in the note, and the other makers sureties. On

1859. the contrary, in another plea, Knour alleges that he himself The State was a mere surety in the note.

SAUVAINE. Per Curiam.— The judgment is affirmed with 5 per cent. damages and costs.

B. F. Gregory and J. Harper, for the appellants.
R. A. Chandler, for the appellee.

Lomax and Others v. STRANGE.

APPEAL from the Grant Court of Common Pleas. Saturday,

January 14, Per Curiam.-Suit by the appellee against the appel- 1860. lants on a note, and judgment by default. The errors assigned will not be noticed, as no steps were taken in the Court below for the purpose of correcting them. This should have been done if errors were committed, as has frequently been decided at the present term of this Court.

The appeal is dismissed with costs.
I. Van Devanter and J. F. McDowell, for the appellants.

The State v. SAUVAINE.

Since the act of 1855, the jury cannot acquit a party of costs where they find

him guilty.

APPEAL from the Switzerland Circuit Court.

Saturday, WORDEN, J.-The appellee was indicted in the Court 1860.

January 14, below for an assault and battery with intent to murder. The jury, on the trial, acquitted him of the intent charged, but found him guilty of the assault and battery, and as


Nov. Torm, sessed his fine at 3 dollars, “without costs.” The prose1859.

cutor moved the Court to render judgment against the deLITTLE fendant for the costs of the prosecution as well as the fine, VANCE. but the motion was overruled, and it was adjudged by the

Court that the defendant pay the fine assessed, but “that as to the costs of this suit, he go hence without day and be discharged.”

The judgment as to the costs, was wrong. Since the act of 1855, a jury has not the authority, by their verdict, to acquit a party of costs where they find him guilty; and that part of the verdict must be regarded as surplusage. The defendant being convicted, he was liable for the costs of the prosecution, and judgment should have been rendered accordingly. This point was decided in the case of The State v. Foster, 9 Ind. R. 139.

Per Curiam.The judgment discharging the defendant from the costs, is reversed, and the cause remanded with instructions to render judgment as above indicated, with costs in this Court.

F. Atkinson, for the state.

LITTLE and Others v. VANCE.

Saturday, January 14, 1860.

APPEAL from the Marion Circuit Court.

Per Curiam.—In this case, though there was not service upon, there was an appearance by attorney for, all the defendants.

The judgment is affirmed with 3 per cent. damages and costs.

R. L. Walpole, for the appellants.

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