Stevens v. The State. to render judgment in favor of the defendant for the amount found due him by the jury. George Gardner and F. J. Mattler, for the appellant. Cox v. MATTHEWS et al. APPEAL from the Tippecanoe Circuit Court. Per Curiam.-The judgment in this case is reversed, for the reasons given in Headley v. Matthews et al., 19 Ind. 222-the questions arising in the record of each case being similar. The judgment is reversed, with costs. Daniel Mace, for the appellant. STEVENS V. THE STATE. APPEAL from the St. Joseph Circuit Court. Per Curiam.-The only error assigned on the original transcript in this case, is shown to have no foundation in point of fact by the perfected record. The judgment is affirmed. McDonald & Roache, for the appellant. Oscar B. Hord, Attorney General, for the State. 21 246 136 19 21 246 150 655 Baker v. Horsey. BAKER V. HORSEY. PRACTICE.-An objection to the form of a judgment in replevin, in order to be available here, must have been first brought to the attention of the Court below in the proper manner. APPEAL from the Martin Circuit Court. PERKINS, J.-Baker sued Horsey to recovery a steamboat, viz: the "Miles." The defendant answered by the general denial of the plaintiff's complaint, and, specially, that he, the defendant, was, at the time of the commencement of the suit, the owner and rightful possessor of the boat. Trial by the Court, finding for defendant, and that the value of the boat was 300 dollars; and, also, that the defendant had sustained 1 cent in damages by its detention by the plaintiff. A motion for a new trial was overruled, and judgment was rendered as follows: "It is therefore considered by the Court that the defendant have return of the property mentioned in said complaint, viz: the steamboat Miles, and in case a return thereof can not be had that the defendant recover of the plaintiff said sum of 300 dollars, the value of said boat assessed as aforesaid; and it is further considered that the defendant recover of the plaintiff 1 cent, his damages for the detention of said boat, together with his costs and charges herein laid out and expended, taxed at," &c. There was no exception below to the form of the judgment. It is contended that the judgment is for the wrong party on the merits, and is wrong in form under the statute. Baker, the plaintiff, claims title to the boat as purchaser of it on execution as the property of one Wilson, but we think the evidence tends to establish the proposition that Horsey, the defendant, was, at the time of the sale, the equitable Baker v. Horsey. owner of the boat, and that the purchaser at the sale had notice of Horsey's title. As to the form of the judgment, and the objection now first raised to it, we will simply quote the rulings of the Court of Appeals of New York in Ingersoll v. Bostwick, 22 N. Y. Rep (1860) p. 425. That was a replevin suit, and the Court of Appeals ruled: "1. That to raise a question of law, an exception must be taken and set forth in the case. "2. That the judgment, which should have been in the alternative for the return of the property or its value, is for the value absolutely, and does not conform to the report of the referee, and is an irregularity but to be corrected by the Court of original jurisdiction, and not reviewable on appeal," where a correction had not been applied for and refused below, and exception taken. Touching the manner of rendering judg ment in replevin suits, this Court held that the question as to whether the property could be returned was not one to be settled by the verdict of the jury, but it is intimated that it should be by the Court, and that the determination should be expressed in the judgment. Plant v. Crane, 7 Ind. 486. But in New York, whose code we adopted, it is held that the judgment should be in the alternative, and the question of return thereby left with the party and the sheriff. 22 New York Court of App., supra, and 5 Seld. 470; id. 559; 23 Barb. 240; 19 id. 479; 17 id. 446; 28 id. 157. See and compare the following sections of our code: 2 G. & H. p. 206, § 339; id. p. 219, § 374; id. p. 230, § 408; id. p. 231, § 411, sub. div. 4. Per Curiam.-The judgment below is affirmed, with costs. John Baker, for the appellant. Newton F. Malotte and Thomas R. Cobb, for the appellee. Windle v. Canaday et al. WINDLE V. CANADAY et al. ESTOPPEL.-Representations, by the payer of a note, that it is valid, and he has no defence against it, made to a purchaser of such note after he has become the owner thereof, do not operate as an estoppel against the payer, nor can such representations, repeated by the purchaser thereof to any person to whom he may sell the same, have such effect in favor of such second purchaser. APPEAL from the Henry Common Pleas. HANNA, J.-Suit on a note. Answer, among other things, that the note was given in part consideration for the purchase of a patent right, &c., concerning the utility and value of which certain representations were made, which are specifically set forth, and alleged to have been false and fraudulent. Reply to that part of the answer above noticed that, before the purchase of the note by the plaintiffs, said defendants stated to one Cook, he being at that time the owner of the note, that it was valid and he had no defence to make to the same, &c., which statement said Cook repeated to the plaintiffs at and before they purchased. The complaint shows the note was payable to one Newbrough, who assigned it to Cook, and he to the plaintiffs. A demurrer to the reply was overruled, which presents the only point in the case. The ruling was erroneous. The statement made by Windle to Cook, after the latter had become the owner of the note, could not have influenced him in purchasing the same, and therefore there was nothing to rest an estoppel upon. As the maker made no statement to the plaintiff's calculated to influence them in acquiring title to the note, he is not estopped by this statement to a third person from setting up a defence. Jones v. Dorr, 19 Ind. 384. If Cook had been in a position to enforce the collection of the note, because of an estoppel based upon representations made by the maker before Cook became the holder thereof, we do Patrick v. Jones et al. not decide that he could not have transferred a clear title to an assignee; but that point is not before us. See Ray v. McMurtry, 20 Ind. 308. The demurrer should have been sustained. Per Curiam.-The judgment is reversed, with costs. Cause remanded. James Brown, for the appellant. 21 249 142 260 PATRICK V. JONES et al. PRACTICE WAIVER.-Error alleged to have been committed in sus- APPEAL from the Madison Circuit Court. DAVISON, J.-The appellees, who were the plaintiffs, on January 16, 1858, brought an action in said Court against Patrick on two promissory notes, which read thus: "$100.00 Indianapolis, March 4th, 1856. "On or before the 25th of December, 1856, I promise to pay John D. Jones, William Becket, Jonathan Ridenour and James Blake 100 dollars, with interest from date, for value received. "PALMER PATRICK." "$150.00 142 329 |