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LEMEN

V.

excessive, and the judgment erroneous in' not specifically Nov. Term,

1859. pointing out the form of surety to be given, and the manner of its approval.

The argument in regard to the amount of alimony is, Young. among other things, pressed upon the hypothesis that such allowance is not in lieu of interests which the appellee might have in the appellant's property if she should survive him. In other words, that she may yet insist upon those rights, &c., notwithstanding the divorce, if she should survive him. This is a mistake; her marital interest, as survivor, depended upon her being his wife at the time of his death. Bish. on Mar. and Div., pp. 661, 667, 797.Rourke v. Rourke, 8 Ind. 438.-Rice v. Rice, 6 id. 106.Whitsell v. Mills, id. 229.

As to the form of the judgment, it is insisted by the appellee that no question is before the Court in relation thereto. No objection, motion, nor application to the Court, in any form, nor exception to the ruling of the Court; in regard to the rendition of said judgment, appears in the record. We are, therefore, of opinion that there is, upon that point, nothing before us for our decision. There was no motion, assigning causes in writing, for a new trial, as required by statute.

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

A. J. Boone, for the appellant.

L. C. Dougherty, J. E. McDonald, and A. L. Roache, for the appellee.

LEMEN and Others v. YOUNG and Others.

APPEAL from the Madison Circuit Court.

Saturday,

December 24. Per Curiam.-Suit before a justice upon an official bond. The principal in the bond, in writing, waived ser

Nov. Term, vice and entered his appearance. Trial and judgment for 1859.

the plaintiffs. The other defendants did not appear. STEBBENS

In the Circuit Court, the plaintiffs and said Lemen apLENpestr. peared. There was a trial and judgment for the plaintiffs

against the "defendants." It is manifest that the entry of the judgment against all the defendants, by writing the word defendants instead of defendants, was a mere clerical error which might have been amended by motion in the Court below, and will be regarded here as having been so amended, under the statute, so as to make the judgment operative only against the one.

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

W. March and J. Davis, for the appellants.
W. R. Pierce, for the appellees.

STEBBENS v. LENFESTY.

Saturday,
December 24.

APPEAL from the Grant Circuit Court.
HANNA, J.-Suit on note.

Answer, first, denial; second, that defendant did not execute and deliver said note, &c.; third, want of consideration, setting out facts, &c.; fourth, failure of consideration, setting out the facts relied on, &c.

Reply, in effect, denying the third paragraph of the answer. No notice taken of any other.

Trial, verdict and judgment for the plaintiff. Motions for a new trial and in arrest overruled.

The only evidence given was the note.

This judgment must be reversed. The fourth paragraph of the answer, as presented by the record, appears to stand uncontradicted. The facts averred in it, therefore, under the statute, were admitted, namely, that the consideration for which said note had been given had failed.

Per Curiam.-- The judgment is reversed with costs. Nov. Term,

1859. Cause remanded, &c.

A. Steele, H. D. Thompson, and M. L. Marsh, for the ap Pavy pellant.

J. Brownlee, for the appellee.

V. RAMSEY.

May and Others v. CRAWFORD.

APPEAL from the Marion Court of Common Pleas. Saturday,

December 24. Per Curiam.-In this suit, the amount claimed and recovered was for 1,000 dollars. The Court had no jurisdiction.

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

M. G. Bright, E. Dumont, and O. B. Torbet, for the appellants.

Pavy and Another v. Ramsey, Executrix.

Where the judge of the Common Pleas is counsel in a case cognizable in that

Court, the suit ought to be brought in the Circuit Court.

APPEAL from the Fayette Circuit Court.

Saturday,

December 24. HANNA, J.-Suit on a note for 1,100 dollars, due February 2, 1858. Judgment by agreement against James, the principal, and, by agreement, certain issues tried by a jury as to the liability of Pavy, who was admitted to be a surety only. Those issues were, denial, payment, and discharge by failure to sue after written notice, &c. The case, as to the surety, turned upon the latter issue. It is

Pavy
V.

Nov. Term, complained that the Court erred as to instructions; and 1859.

that the evidence does not sustain the verdict, &c.

The answer avers that the notice to sue was given on RAMSEY. the 5th of January, 1858. The reply is that such notice

was received about the 1st of April, 1858. The suit was brought at the first term of the Circuit Court thereafter. The evidence shows that when the notice was given, there were credits on the note reducing the amount due to a sum less than 1,000 dollars; that, upon maturity, the note was placed in the hands of Reid; that he was the Common Pleas judge, &c., but attorney for the plaintiff in all matters not "arising or directly concerned in the Common Pleas Court. Heron and Wilson were her attorneys in that Court."

The verdict returned was for the plaintiff, &c.

The instructions were upon the question whether a suit should have been instituted in the Common Pleas. That refused is, perhaps, proper as an abstract proposition; but when viewed in reference to the evidence in this case, we think, was properly refused under $ 9, 2 R. S. p. 17, which provides that where the Common Pleas judge has been, or may be, of counsel, &c., in a case cognizable in that Court, suit shall be brought in the Circuit Court, &c. It would seem to be useless to bring a suit in a Court merely to have the jurisdiction ousted. Witter v. Taylor, 7 Ind. R. 111. If we are right in the conclusion that, under the circumstances, the suit ought not to have been brought in the Common Pleas, before Judge Reid, then the defense fails.

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

N. and G. Trusler, for the appellants.
J. S. Reid, for the appellee.

Nov. Term,

1859.

Davis v. BOND and Another.

DAVIS

V. Bond.

Where the contracts concerning which matters of difference submitted to arbi

trators arose, did not waive relief from the appraisement law, but a clause in the arbitration bond provided that the award might be made a rule of Court, and judgment entered without relief; held, that, under the statute of 1843, judgment was properly so rendered.

APPEAL from the Laporte Circuit Court.

Saturday,

December 24, IIANNA, J.-In this case, the matters of difference were submitted to the arbitration of persons mutually chosen. Bonds were executed, an award made, returned to Court, proved, and a rule entered that the appellant show cause, &c.

The appellant did not appear. There was judgment upon the award, after which there was an appearance by counsel, and an appeal prayed.

The appellant makes two points, both arising upon the judgment

1. That a judgment was rendered in favor of both appellees, for a sum found in favor of one.

2. That the judgment is without relief, &c.

The contracts and agreements, concerning which the matters of difference submitted to arbitration arose, did not waive relief from valuation, &c.; but there was a clause in the arbitration bonds which provided that the award might be made a rule of Court, &c., and judgment entered without relief from valuation laws.

It is insisted that the statute of 1843 does not authorize a waiver of the right to have property valued, &c., in instruments of this character. That statute is, that “from and after the first day of June next, if any person or persons, for a consideration arising wholly after that time, shall agree in writing to pay any sum of money, without any relief whatever from valuation or appraisement laws, judgment shall be rendered accordingly,” &c. Acts of 1843, p. 52.

We are of opinion that the objection is not well taken. It is true, at the time the agreement was made, the sum to

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